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[2005] VSC 440
defendant. The proceeding was dismissed. The plaintiff was ordered to pay the first defendant’s costs, including any reserved costs: [39].
The court held that the loan agreement showed that the parties intended the identified land to secure repayment, even though they never signed the separate deed of charge mentioned in the agreement. The lender had also obtained a judgment for the debt, but the court treated the claimed security as distinct from the debt claim because the lender was relying on it only to oppose removal of the caveat, not to enforce it in that proceeding. The caveat therefore remained, and the plaintiff’s application was dismissed.
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In McMillan v Dunoon [2005] VSC 440, Gillard J considered an application by Jody Anne McMillan, the registered proprietor of a residential property in Pascoe Vale, to remove a caveat lodged by Andrew Dunoon. The proceeding was brought under s 90(3) of the (Vic) [1]. The Registrar of Titles was named as the second defendant but did not appear.
No linked legislation citations have been extracted yet.
McMillan and Dunoon entered a loan agreement on 23 December 2002. Dunoon advanced $20,000, repayable by 23 February 2003. The agreement specified $6,000 fixed interest, followed by penalty interest at 15 per cent per month until payment. McMillan’s partner, Gregory Nichols, guaranteed the debt [4]. The loan was not repaid.
The agreement addressed security in two relevant ways. Clause 6 stated that a precondition of the advance was that McMillan provide the security identified in Item 7 of the schedule. Item 7 described a “Deed of charge” over the Pascoe Vale land and a guarantee by Nichols [7]-[8]. Clause 4, separately, required McMillan to execute a legal mortgage if the lender called on her to do so in writing [9]-[10]. No separate deed of charge was executed.
On 8 January 2003, Dunoon lodged a caveat claiming an interest as chargee, on the stated ground that a charge had been given under the 23 December 2002 agreement [5]. Later, Dunoon sued McMillan and Nichols in the County Court over the debt. That proceeding was compromised, but the defendants defaulted on the settlement terms. The County Court entered judgment for $35,161.36 on 2 March 2005, and the judgment debt remained unpaid [13]-[14].
McMillan sold the property under a contract dated 23 July 2005, with settlement due on 23 September 2005. She applied to remove the caveat in the lead-up to settlement [6]. The central questions before Gillard J were whether the agreement created an equitable charge despite the absence of a separate deed, and whether the County Court judgment prevented Dunoon from relying on that charge to maintain his caveat.
The court dismissed McMillan’s proceeding and ordered her to pay Dunoon’s costs [37]-[39].
The court treated this as a summary proceeding and stated that the caveator bore the onus of establishing a caveatable interest [6]. Dunoon’s claimed interest was an equitable charge. The parties accepted that an equitable charge over real estate could provide a caveatable interest [11].
Gillard J rejected the argument that the County Court judgment necessarily prevented Dunoon from relying on the charge. The court distinguished between pursuing the debt claim and relying on a security interest in response to an application to remove a caveat. Dunoon was not asking the Supreme Court in this proceeding to enforce the charge, such as by seeking an order for sale of the property. He was asserting that the charge existed and supported the caveat [16], [24], [28].
The court accepted the general proposition that a party may elect to pursue a course, but concluded that the steps taken by Dunoon did not amount to an election between competing remedies if an equitable charge existed. It also concluded that the charge had not merged into the County Court judgment. The judgment described the rights as distinct and separate and emphasised that maintaining the caveat was not itself an application to enforce the charge [16], [21]. In reaching that view, the court referred to Ealing L.B.C. v El Isaac & Anor and to the distinction between a judgment on a cause of action and collateral security [17]-[20]. It also considered the merger and res judicata passages relied on from Port of Melbourne Authority v Anshun Proprietary Limited, but concluded that Dunoon was not seeking to litigate the same cause of action again [22]-[24].
The decisive question was whether the agreement itself showed an intention to charge the land. The judgment identified the importance of the words “a pre-condition of the loan advanced” in cl 6. The scheduled security expressly described a deed of charge over the land, and the title details had been supplied by McMillan for inclusion in the agreement [7]-[8], [25]. Gillard J also compared cl 6 with cl 4. Clause 4 contemplated that the lender would call on McMillan in writing to execute a legal mortgage. Clause 6 did not make the identified security subject to such a later call [9]-[10].
The court applied the principle, discussed through AVCO Financial Services Ltd v White and Cradock v Scottish Provident Institution, that a charge can be inferred from an instrument if the court can fairly gather an intention that the identified property be security. The judgment did not require particular technical words of charge [27], [29]-[30]. It also considered the equitable maxim that equity regards as done what ought to be done. As explained in the text cited by counsel, the maxim is limited to a situation where the thing that ought to be done can be done, and in a contractual setting depends on the contract being specifically enforceable. Gillard J considered that Dunoon could have sought specific performance of the obligation requiring execution of a deed [32]-[34].
Gillard J ultimately found that the agreement evidenced a common intention to charge the land. The language of cl 6, the separate treatment of a mortgage in cl 4, the discussion of security reflected in the agreement, and the inclusion of the title details all supported that inference [36]. The court used Re Strand Music Hall Company in support of giving effect to an intended charge despite a failure to complete it through another document [35]-[37]. It therefore held that Dunoon had established a caveatable interest and dismissed the application [37].
The judgment did not announce a new statutory test under s 90(3). It applied the caveat procedure to a dispute about whether the claimed equitable interest existed. Its stated procedural point was that the caveator bore the onus of maintaining the caveat by establishing a caveatable interest [6].
The decision’s contribution in this case was its application of equitable-charge principles to the particular wording of a loan agreement. The separate deed had not been executed, but the court did not treat that fact as conclusive. Instead, it asked whether the written agreement allowed an intention to make the land security to be fairly inferred [25], [30], [36]-[37]. The reasoning depends closely on the contractual text and circumstances recited by the judge, particularly the precondition in cl 6 and the land description in Item 7.
The judgment also explained how it treated the earlier judgment for the debt. It distinguished the debt cause of action from the security interest relied on to support the caveat. It did not hold that every later reliance on security is unaffected by a judgment for the debt. Its reasoning was tied to the fact that Dunoon was not seeking to enforce the charge in the caveat proceeding [16], [21], [24], [28].
The judgment therefore records an application of existing equitable concepts and merger reasoning to the facts before the court. The supplied judgment does not describe the state of the law before this decision in broader terms, nor does it provide subsequent legislative changes or later judicial treatment. It would be unsafe to infer a general change in the law from this judgment alone.
At [6], Gillard J said: “The onus is on the caveator to maintain the caveat and establish that he has a caveatable interest in the property.” In plain English, the person resisting removal had to show a sufficient claimed interest in the land to justify keeping the caveat in place.
At [16], the judge explained that Dunoon was not seeking to enforce the charge in the proceeding. In plain English, the immediate issue was whether he had a security interest that supported the caveat, not whether the court should sell the property or otherwise enforce that security.
At [25], the court focused on the words “a pre-condition of the loan advanced”. The judgment understood those words, together with the scheduled identification of the land, as evidence that security was not an incidental topic but part of the agreed basis for the advance.
At [34], Gillard J stated that it would have been open to Dunoon to seek specific performance of the obligation to execute a deed. This supported the use of the equitable maxim discussed in the judgment: if the parties had agreed to do something that equity could order them to do, the court could treat the intended result as having been achieved for the relevant equitable purpose.
At [36]-[37], the judge made the central finding: the contract showed a common intention that the land be charged, and Dunoon had established a caveatable interest. In plain English, the missing separate deed did not prevent the court from finding that the agreement itself created an equitable security interest.
The judgment is most directly relevant to a dispute where a caveator claims an equitable charge based on a written loan agreement, but the separate formal security document contemplated by that agreement was never executed. The contractual indicators that mattered here were unusually direct: cl 6 made security a precondition of the loan, Item 7 identified the land, and the agreement included the title particulars [7]-[10], [25], [36].
It is also relevant where the agreement contains more than one provision dealing with security, and the distinction between them may illuminate the parties’ intention. Here, cl 4 contemplated a later written demand for execution of a legal mortgage, while cl 6 made scheduled security a precondition without that same demand requirement [9]-[10]. The court treated that difference as part of the context for interpreting the agreement, not as a universal rule about clauses of this kind.
The judgment may also be pertinent where a creditor has obtained judgment for a debt and later relies on a claimed collateral security in a caveat proceeding. Its reasoning turned on the separation between recovering the debt and asserting the security as the basis for a caveatable interest, and on the fact that the caveator was not seeking enforcement of the charge in that proceeding [16], [21], [24].
The case should not be read as establishing that any reference to security creates a charge, that a caveat must be maintained whenever a debt is unpaid, or that a judgment for a debt can never affect rights under security. The outcome depended on the agreement’s wording and the limited purpose for which the charge was relied on.
The judgment provided here contains no account of later cases considering McMillan v Dunoon. It identifies no subsequent appellate decision affirming, reversing, distinguishing, or applying the decision. Accordingly, later judicial treatment cannot be established from this source alone.
The authorities Gillard J discussed are earlier authorities, not later treatment of McMillan. The judgment referred to Lewenberg and Pryles v Direct Assessment Corporation Limited for the caveator’s onus [6]; Ealing L.B.C. v El Isaac & Anor and Port of Melbourne Authority v Anshun Proprietary Limited in discussing merger and the effect of judgment [15]-[24]; and AVCO Financial Services Ltd v White, Cradock v Scottish Provident Institution, and Re Strand Music Hall Company in addressing equitable charges and intention [27]-[37].
For a complete account of the precedent’s current status, later treatment would need to be checked in legal research sources beyond the judgment supplied here. This analysis does not assert that the decision has or has not been followed, distinguished, or affected since 2005.
The judgment resolved whether the wording and circumstances of this agreement supported a charge. It did not set out a comprehensive checklist for deciding when a loan agreement creates an equitable charge. It leaves the application of the “fairly gather” test to the language and context of the particular instrument [29]-[30], [36].
The decision also does not determine how the analysis would change if the agreement described security less expressly, omitted a specific land description, or made execution of a deed an express condition that had to occur before any security interest arose. Those issues were not decided on the facts recited.
The court considered the obligation to execute a deed capable of specific enforcement, but the supplied judgment does not record an application for, or decision on, specific performance. It used the potential availability of that remedy in its reasoning about the equitable maxim [32]-[34].
Finally, the judgment addressed merger only in the context of maintaining a caveat, not enforcing the charge. It expressly noted that Dunoon had not applied to have the property sold and proceeds paid into court [28]. The consequences of a judgment for the debt in a later proceeding actually seeking enforcement of security were not decided.
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APPLICATION FOR REMOVAL OF CAVEAT - Section 90(3) Transfer of Land Act 1958 - Loan agreement between parties - Default by plaintiff - Caveat lodged by first defendant - Whether loan agreement constituted equitable charge amounting to caveatable interest - Intention to constitute security could be inferred from instrument - First defendant entitled to maintain caveat - Proceeding dismissed.
1 This is an application by the plaintiff who is the registered proprietor of a residential property seeking an order, pursuant to s.90(3) of the Transfer of Land Act 1958, that a caveat lodged by first defendant on the title of the property be removed.
2 The land is situated at and known as 3 Grover Street, Pascoe Vale, and is more particularly described in Certificate of Title Vol. 06916 Folio 019.
3 The plaintiff, Jody Anne McMillan is the registered proprietor of the property. The property is mortgaged to the Australian and New Zealand Banking Group Limited by an instrument dated 25 August 2000. The first defendant, Andrew Dunoon, apparently lends money. The second defendant is the Registrar of Titles.
4 On 23 December 2002 Ms McMillan and Mr Dunoon executed a loan agreement. The latter lent Ms McMillan the sum of $20,000 to be repaid by 23 February 2003. Ms McMillan agreed to pay a substantial sum of fixed interest, namely $6000, on or before 23 February 2003, and thereafter agreed to pay penalty interest at the rate of 15 per cent per month until payment. Her partner, Gregory Nichols, signed a guarantee. The loan was not repaid.
5 On 8 January 2003 Mr Dunoon through his solicitor lodged a caveat with the registrar of titles. The estate or interest claimed was expressed to be "an interest as chargee" and the grounds of claim were expressed as follows: "Charge given 23 December 2002 between the caveator and Jody Anne McMillan." It is obvious that Mr Dunoon is claiming an interest in the property pursuant to a charge apparently arising out of the loan agreement.
6 By contract of sale dated 23 July 2005 Ms McMillan sold the property for the sum of $421,000. Settlement is due this Friday, 23 September 2005. Hence the urgency of this application. Ms McMillan seeks an order that the caveat be removed no doubt to facilitate the settlement. This is a summary procedure. The onus is on the caveator to maintain the caveat and establish that he has a caveatable interest in the property. See Lewenberg and Pryles v Direct Assessment Corporation Limited.[1]
7 According to his counsel, Mr Nettlefold, Mr Dunoon claims that he does have an equitable charge over the property. He relies upon the terms of the loan agreement. It was a term of the agreement that Mr Dunoon would advance to Ms McMillan the principal sum. Clause 6 of the agreement provided: "It is a precondition of the loan advanced that the borrower provide the lender with the security particularised in Item 7 of the Schedule."
8 Item 7 of the Schedule provided:
"(7) Security: Deed of charge over the land situated at Lot 35 on Plan of Subdivision 001763, Certificate of Title Volume 06916 Folio 019: Guarantee of the Debt by Gregory Alan Nichols."
9 It is fairly obvious from those few facts that the question was considered and discussed by the parties as to Ms McMillan providing some security and it would appear that she must have given Mr Dunoon the description of her Certificate of Title and the interest she had in the property. In fact no such deed was entered into. Clause 6 of the Agreement is to be compared with Clause 4 which provides:
"(4) The Borrower shall at any time when called upon in writing by the Lender to make and execute to the Lender a legal mortgage in fee simple (to contain all such usual and proper covenant clauses and provisions as the lender's solicitor may require) on the land being Certificate of Title Volume 6916 Folio 019 to better this debt." (sic)
10 Again one compares that particular clause with Clause 6. This clause does require the lender to take a step, namely to call upon the borrower in writing to execute a mortgage. On the other hand Clause 6 is not subject to such an obligation.
11 Mr Dunoon's counsel, Mr Nettlefold, submitted that the loan agreement constituted an equitable charge. It was common ground between the parties that an equitable charge over real estate gives a caveatable interest in the real estate. Mr Dunoon brought a proceeding in the County Court and obtained judgment against Ms McMillan and her partner, Mr Nichols, for the debt and interest.
12 Mr A.P. Dickenson of counsel for Ms McMillan submitted that Mr Dunoon could not prove that he had a charge. He relied upon two general grounds. First, that the terms of the loan agreement did not constitute a charge. He submitted that the agreement contemplated that a further step would be taken before the charge would come into existence, namely that a Deed would be executed. Secondly, that by bringing a proceeding in the County Court and obtaining judgment for the debt and interest, this amounted to an election which exhausted all other remedies under the loan agreement and the obtaining of a judgment or rights under the agreement merged into the judgment. Mr Nettlefold submitted it was plain that the loan agreement was an equitable charge.
13 It is necessary to set out the circumstances of the proceeding brought by Mr Dunoon against Ms McMillan and the guarantor. On 28 May 2004 Mr Dunoon instituted a proceeding in the County Court seeking the amount of the principal together with interest. The claim was in the sum of $80,600. The size of the claim no doubt is referable to the very demanding interest provisions. He made application for summary judgment by summons dated 2 August 2004. The application and also the proceeding was compromised on the basis that the defendants, that is Ms McMillan and her partner, would pay Mr Dunoon the sum of $26,000 together with interest pursuant to the Supreme Court Act and costs which were agreed at $1750.
14 The terms of the settlement went on to provide that in the event of default Mr Dunoon was entitled to enter judgment. As things turned out there was default. On 2 March 2005 the County Court entered judgment against Ms McMillan and her partner, Mr Nichols, in the sum of $35,161.36. Despite this judgment neither Ms McMillan or Mr Nichols have paid the amount of the judgment debt.
"When a former action is being pursued to judgment in a court of record, the original cause of action is merged in the judgment, so that a second action cannot be brought in respect to the same cause of action."
"So long as the judgment remains unsatisfied, however, it does not extinguish any remedy except the particular cause of action in respect of which it was recovered and the creditor is not precluded by it from enforcing any collateral security which he may have taken."
19 I emphasise the phrase, "from enforcing any collateral security which he may have taken." In Ealing L.B.C. v El Isaac & Anor,[3] Templeman LJ said:
"Merger does not apply where there is an independent covenant, nor does it apply to a security as distinct from a contract."
20 His Lordship then went on to observe on the same page:
"It appears therefore that Merger has a very restricted operation if it does not, as appears from the 1902 case which I have just cited, apply to a security. It does not apply to what is said to be an independent covenant and in most mortgages and deeds of borrowings these days care is taken to make a covenant an independent covenant."
21 In my opinion, Mr Dunoon entering judgment against Ms McMillan and the guarantor for the amount of the debt including interest, does not preclude him from seeking to rely upon a charge over the land as supporting a caveatable interest. He has not exhausted his remedies, he has not elected not to rely upon the charge, if it is a charge, and the right to rely upon it as a charge is not merged in the judgment.
22 Mr Dickenson, as I have stated, referred to what was said in the Anshun case.[4] What Their Honours said there was:
"That where an action has been brought to judgment, no other proceeding can then be maintained thereafter on the same cause of action."
"That the rule as to res judicata comes into operation whenever a party attempts in a second proceeding to litigate a cause of action which is merged into judgment in a prior proceeding."
24 That is not what Mr Dunoon is seeking to do by opposing this application. What he seeks to do is to prove that he has a security, which is an equitable charge which supports the caveat that he has lodged over the property.
25 The real question in my view turns on whether or not the loan agreement amounts to an equitable charge. The deed contemplated by the agreement was not executed. However, Mr Nettlefold submits that the terms of the agreement establish that it was the common intention of the parties that the property would be charged as security for repayment of the loan. Mr Nettlefold relies upon the wording and in particular the phrase, "a pre-condition of the loan advanced." The word, "pre-condition" means inter alia, "a condition necessary to a subsequent result." It is also very apparent from the wording of the agreement itself that there was a discussion about providing security and that Ms McMillan did provide the necessary particulars of the title to enable this to be inserted in the agreement.
26 Mr Nettlefold submits that it was the common intention of the parties to create a charge over the property as security for repayment. He relied upon the equitable principle that equity looks on that as done which ought to be done.
27 In AVCO Financial Services Ltd v White[5] Gillard J discussed the principles concerning an equitable charge. His Honour said:
"An equitable charge for a debt is a security whereby only a right to payment of the debt out of the property is conferred by the owner of the property to the holder of the security. The remedy of the holder of the security on default in payment of the debt was to apply to a court of equity to have the property sold and the proceeds paid into court."
28 His Honour referred to a number of cases. I interpolate here to observe that Mr Dunoon has not applied to this court to have the property sold and the proceeds paid into court. That underlines what I said earlier that that is not what Mr Dunoon is seeking to do in this application. He is opposing this application to remove the caveat.
29 His Honour then went on to say, quoting what an English judge said in a case, as follows:
"As was pointed out by Romer J in Cradock v. Scottish Provident Institution (1893) 69 L.T. 380 at p.382: 'To constitute a charge in equity by deed or writing it is not necessary that any general words of charge should be used. It is sufficient if the court can fairly gather from the instrument an intention by the parties that the property therein referred to should constitute a security.' The learned judge's decision was subsequently affirmed in the Court of Appeal."
30 It is noted that the issue comes down to whether the Court can fairly gather from the words of the agreement an intention by the parties that the property referred to in the agreement was to be charged with payment of the debt. In other words, did it constitute a security?
31 Mr Nettlefold referred to the second edition of Equity Doctrines and Remedies by Meagher, Gummow and Lehane at paragraphs 339-40.
32 The learned authors were dealing with the maxim that, "Equity looks on that as done which ought to be done", and Mr Nettlefold relied upon the fifth instance stated by the learned authors. In that paragraph they set out a number of examples of when the maxim has been applied. With respect to the fifth instance they said:
"The fifth instance is equity's attitude to contracts where the maxim means that often equity treats a contract to do a thing as if the thing were already done. Thus often equity will treat a person who for valuable consideration has agreed to take a lease as if he were a lessee: this is the doctrine of Walsh v Lonsdale [1882] 21 Ch D9 discussed in the previous chapter. Thus also is the doctrine of an equitable mortgage explicable. Any contract to give a mortgage creates not a hyperfication but an equitable mortgage conferring a right to foreclose."
33 The learned authors then went on to observe, the following:[6]
"It is noted that the applicability of the maxim is limited to circumstances where that which ought to be done can be done; the maxim does not require one to believe that equity will regard as done that which no court of law or equity would ever order to be done. Therefore it can be availed of not by everybody but only by those who would have the right to seek in equity the enforcement of the contract. This is often expressed by saying with approximate accuracy that in cases of contract the maxim depends on a specific enforceability of the contract."
34 Applying that statement to the present case I have little doubt that it would have been open to Mr Dunoon, if he so thought fit, to seek specific performance of the obligation requiring the execution of a deed.
35 Finally, Mr Nettlefold referred to the case of Re Strand Music Hall Company.[7] In that case Lord Justice Turner said this:[8]
"There can I think, be no doubt that it was intended by these agreements to create a charge upon the property of the company but it was said on the part of the official liquidator that his intention was not well carried into effect. I apprehend, however, that where this court is satisfied that it was intended to create a charge that the parties who intended to create it have the power to do so it will give effect to the intention notwithstanding any mistake which may have occurred in the attempt to effect it. The case in this respect is, I think, governed by the passage cited from Lord Redesdale's treatise, and by the cases to which he refers, cases which, as I concede, rest on the analogous principle, universally prevailing in this court, that what is agreed to be done is to be considered as done."
36 In my opinion, the words in this contract do lead to the conclusion that it was the common intention of the parties that a charge would be given over Ms McMillan's land at Pascoe Vale. I think the phrase, "It is a precondition of the loan advance" makes that clear. In addition, there is a comparison between Clauses 4 and 6 and, finally, it is also clear from the wording of the agreement that there had been a discussion along the lines of providing a security, and Ms McMillan had, in fact, provided the details of her title.
37 In the end it is a question of whether or not the Court can infer from the instrument an intention to constitute a security. As was said in the Re Strand-Music Hall Company case, once a Court is satisfied that there was an intention to create a charge, although the parties did not through some reason or mistake actually effect it by the execution of some other document, nevertheless the Court will reach the conclusion that what was done, even though not according to the strict letter of the agreement, constituted what the parties intended. This, in my view is a common sense approach, and the Latin maxim, "equity looks on that as done which ought to be done", gives effect to the common sense approach. Accordingly in my opinion the caveator, Mr Dunoon, has established that he does have a caveatable interest in the property and is entitled to maintain the caveat in its present form. Accordingly I dismiss the plaintiff's application.
38 So the orders I make are that, since this is the proceeding, I will dismiss the proceeding.
39 I order:
1. That the proceeding be dismissed.
2. That the plaintiff pay the first defendant's costs of the proceeding including any reserved costs.
[1] [1981] VicRp 36; [1981] VR 344.
[3] [1980] 1 WLR 932 at 937.
[4] at p.597.
[5] [1977] VicRp 62; [1977] VR 561 at 563-4.
[6] At [340].
[7] [1865] 3 Deg J and S 147; [1865] EngR 710; 46 ER 594.
[8] at p.598 of the ER:
McMillan
Dunoon [2005] VSC 440
(1981) 147 CLR 589
The proceeding was dismissed. The plaintiff was ordered to pay the first defendant’s costs, including any reserved costs: [39].
15 Mr Dickenson submitted that when Mr Dunoon entered judgment in the County Court any rights under the agreement, including any right to compel the plaintiff to provide a charge over the land or indeed to enforce a charge, merged in the judgment. He made reference to the Port of Melbourne Authority v Anshun Proprietary Limited.[2] Another way of putting the argument would be that Mr Dunoon had a choice of remedies available to him and by seeking to recover the debt and interest and entering judgment he elected to obtain that remedy and abandon any other claims.
16 I accept as a matter of principle that Mr Dunoon by the steps that he took elected to pursue a certain course. In my opinion, if the agreement constitutes a charge in equity the steps taken by Mr Dunoon do not amount to an election of competing remedies, nor does the obtaining of the judgment mean that the charge, if there is one, has merged into the judgment. In my opinion the rights are distinct and separate. Mr Dunoon is not seeking in this proceeding to enforce any charge, nor does the maintenance of the caveat amount to seeking to enforce a charge. What Mr Dunoon contends is that he has an equitable charge over Ms McMillan's property and this amounts to a caveatable interest in her property. He is not seeking to enforce the charge.
17 Mr Nettlefold referred to a number of authorities supporting that conclusion. He referred to Halsbury's Laws of England, Volume 9(1) Paragraph 1063. The learned authors wrote: