This note refers to Mr Downs pointing out to Mrs Bell that to complete the advance it was necessary for Amberday to execute and stamp the mortgage, stamp the contract and the transfer and to have these things done by settlement. These were steps which it was necessary to have done if the mortgage to Mrs Shawyer was to be registered after settlement of the advance. On this occasion 22 August 1997 Mr Downs gave Mrs Bell the form of mortgage. It is possible that Mrs Bell may have affixed Amberday's seal and signed as director on this occasion; it is not clear whether that event occurred at Mr Downs' office. Mrs Bell's evidence raised the possibility that Mr Patten may also have been present and signed on that occasion, but Mr Patten's evidence is to a different effect and in my finding he signed on a different occasion. So it was that the form of mortgage left Mr Downs' hands in an incomplete state, no doubt in the contemplation that it would be returned executed and stamped at or before settlement, when the blanks could be completed as then appropriate.
25 Neither on this occasion or on any other time does it appear that any person concerned noticed that Mrs Shawyer's name was misspelt or that the amount of $230,000 appeared as the amount advanced, although the contemplated advance was $140,000.
26 The evidence of Mr Patten and of Mrs Bell diverges on when and where Mr Patten completed the execution of the mortgage on behalf of Amberday by signing as director. Mrs Bell's evidence on this subject was particularly vague. It is probable that, as Mr Patten says, he signed the document, without reading it, when she produced it to him for signature at the Corrimal premises, and it is also probable that this happened after the advance had been made and the purchase had been completed on 3 September 1997. That is to say, it should be concluded that when the advance was made the mortgage document had Amberday's seal placed on it and Mrs Bell had signed as a director, but Mr Patten had not; after the advance had been made Mr Patten signed as a director; at some time an undated note was made by Mrs Bell in the seal register recording execution of the mortgage; but nothing else was done to complete the document or to register it. There is no reason to suppose that any directors' resolution was passed or that any minute of a resolution was made relating to the arrangement to give a mortgage or to its execution. Throughout his receivership Mr Wiley was never able to locate any directors' minute, or any other significant record. Probably Mr Patten and Mrs Bell kept no directors' minutes about anything.
27 On 25 August 1997 Mr Downs attended Mr Waters on the telephone. Mr Downs' note is in the following terms:
T/Att Malcolm Waters.
. not proceeding with mortgage. He is giving the $142,000 to Ian in Melbourne, (banking to his account) and will get personal guarantees from them later.
. I explained this was very dangerous, that an unsupported guarantee was quite worthless. He understands this not concerned.
. Has bank cheque payable to use (142K) can we bank them pay to Ian. I said no - he should change the cheque.
. Instructions
- Aware exchange done
- No security to be prepared - may require guarantee later
- Aware from accountant that tax notice issued.
- Is seeing Bank tomorrow to arrange discharges.
28 The effect of this is that Mr Waters, who then spoke of the advance as $142,000, was contemplating a completely new course in which instead of the advance to Amberday being directed to the National Australia Bank at settlement, it was for some reason to be paid to Mr Patten in Melbourne; Mrs Shawyer would not get a mortgage and Mr Patten and Mrs Bell would give personal guarantees; Mr Downs advised strongly against lending on personal guarantees; Mr Waters indicated that notwithstanding the advice no security document was to be prepared. In the circumstances it is not surprising that Mr Downs declined to handle the funds which were to be advanced.
29 From this point on Mr Downs took no further step related to the mortgage. On 28 August 1997 Mr Downs wrote to Mr Waters a rather strong letter of advice, addressed to "The Manager Malcolm Waters Pty Ltd" and actually received by Mr Malcolm Waters, which included the following:
3. The Purchaser was not proposing to execute the first registered mortgage over the property as security for the loan by Mrs Sawyer;
4. You instructed us that an unsecured loan would be made to one of the Directors of the Purchaser Company to enable the Purchaser Company to proceed and that, at some future time, the Directors of the Purchaser Company may provide a personal guarantee for repayment of that loan amount;
5. We confirmed that such an arrangement was extremely dangerous as the unsupported personal guarantees may be worthless. Notwithstanding our advice you instructed us not to take any further action in respect of the proposed first registered mortgage and not to proceed with preparation of any alternate security documents at this time.
30 When he attended on settlement on behalf of Malcolm Waters Services on 3 September 1998 Mr Downs did not produce or pay over the amount of the advance (and that was done by Mr Waters). He took no steps to obtain the mortgage in a completed form or otherwise to take security. He did not act for Mrs Shawyer, he had no instructions or responsibility to take security; he was not then aware of any contemplated arrangements to take security, he did not again see the mortgage document, and he did not give it any further attention.
31 Mr Waters' evidence was to the effect that notwithstanding that the dealings with the mortgage were left in this way with Mr Downs, Mr Waters in fact decided and agreed with Mrs Bell that security would be taken according to the form of mortgage, and made arrangements with her for the mortgage to be stamped and registered and held by her on account of Mrs Shawyer. There are a number of circumstances which make this view of the facts quite improbable; the circumstances include the fact that neither Mr Downs or any other solicitor was involved in looking after Mrs Shawyer's interests, although Mr Downs was readily to hand and was advising taking security, that the form of mortgage was left uncompleted, unaccepted, unstamped and unregistered, and that it was left in the actual control of Mrs Bell who was a director of the borrower, contrary to ordinary practice and common prudence which would require that the mortgage be stamped, registered and kept, with the Certificates of Title, in safe keeping on account of Mrs Shawyer. Notwithstanding the general improbability of the situation, the evidence of Mr Patten and of Mrs Bell both support a view of the facts in which the mortgage was intended to be effective, the execution by Amberday was completed by Mr Patten with that intention. The evidence of Mr Waters and Mrs Bell both support the view that Mrs Bell was asked by Mr Waters to keep the mortgage and related documents at his direction, which she interpreted as being on behalf of Mrs Shawyer. These three witnesses did not speak with one voice; there are significant differences in matters of detail and circumstances, and nothing which I regard as a clear reason for proceeding in this strange way appears from the evidence. Mrs Bell had lived with Mr Waters in a de facto relationship for several years, the relationship had resumed for several months after an interval, and then they went into a state of conflict late in 1997, and it is not unusual to hear strange and divergent accounts of events from people who have experienced conflict in a profound emotional relationship.
32 Mr Waters' evidence was to the effect that the basis on which the documents remained with Mrs Bell after settlement was that she was to stamp them, register them, and hold them in safe custody in a box at National Australia Bank, Corrimal, until he gave further directions. Mrs Bell's evidence was to the effect that Mr Waters directed her not to register the mortgage but to keep the mortgage unregistered for about three months when he would tell her what further was to happen. In some way Mrs Bell brought it about that the contract was stamped, the transfer to Amberday was stamped and marked, the transfer to Amberday and the discharges of National Australia Bank mortgages were registered and Amberday became the registered proprietor; and then by 15 September 1997 the registered documents were held by Messrs Manfred Dougall & Co. solicitors of Goulburn in safe custody on account of Amberday. At some times which are not clearly established Mrs Bell lodged the mortgage document for safe custody at the Corrimal branch of the National Australia Bank, then later removed it and left it in safe custody with Messrs Manfred Dougall. She was unable to give a clear or credible account of the events in which documents were stamped and registered, and appeared to have very little understanding of the processes involved.
33 Neither Mr Waters nor Mr Patten nor Mrs Bell appeared to me to be convincing as witnesses; the accounts they gave included various events and behaviour which were improbable and highly unbusinesslike. Mr Patten responded in a very combative way to cross-examination and appeared to be more concerned with creating a scene than with directing himself to a truthful narration, and he made some very unlikely claims of want of memory. Mrs Bell spoke rather widely and discursively, and did not give me the impression that she had a clear or complete recollection or understanding of events. Mr Waters appeared to me to exhibit a markedly unsatisfactory demeanour, and his conduct in the management of his mother's affairs was so irresponsible as to be very adverse to his credit. Significant parts of the story have not been told to me, particularly the history of the consideration of some alternative scheme involving payment to Mr Patten and guarantees which it must be taken from his evidence that Mr Waters adhered to for some time and then abandoned. Unsatisfactory as all three witnesses are, their evidence does support the finding, objectively improbable as it is, that the mortgage document was intended to be effective, even though it is obvious that no-one ever addressed what it said in a considered way, and no-one ever dealt with the erroneous statement of the amount of the advance or other errors and omissions in it.
34 Notwithstanding the evidentiary difficulties, I am of the view, having regard to the evidence of the three of them, that I should find that it was intended both by Mr Waters as manager of his mother's property and by Mrs Bell and Mr Patten as directors of Amberday that the money advanced out of Mrs Shawyer's resources and applied towards purchase money and then further applied to discharge the obligations of Malcolm Waters Services to National Australia Bank was intended to be secured by the mortgage document. It should be inferred that in some way it was agreed that the advance of $141,828.14 which actually took place on 3 September 1997, which was drawn by Mr Waters from a bank account which he held as trustee for Mrs Shawyer, was intended to be secured by the mortgage document. It is established by Mr Downs' notes of the interview of 22 August 1997 that it was intended by those concerned that the advance should be from three years; the form of mortgage does not express this. It appears from Mrs Bell's evidence that in her understanding and in pursuant of an arrangement Mr Waters made with her, she held the mortgage and the Certificates of Title on behalf of Mrs Shawyer and not on behalf of Amberday; I accept that this is true.
35 On or about 3 September 1997 Messrs Manfred Dougall & Co. (who at that stage were acting for Amberday rather than for Mrs Bell) gave Mrs Bell a slip of paper with the address of the Office of State Revenue in Wollongong on it and, although she did not give a clear account herself, it is probable that she took the transfer there, produced the stamped contract and had the transfer stamped and marked for registration; it is also probable that in some way she sent the Certificates of Title, the Discharges of the National Australia Bank mortgages and the transfer to the Sydney Law Stationers who acted for Messrs Manfred Dougall & Co to register them; she may have sent them to the Law Stationers directly or she may have returned the documents to the solicitors in Goulburn. Their Odyssey is conjectural, but they reached its Ithaca at the solicitors' office, stamped and registered, by 15 September and the Mortgage did not. At some time the mortgage was delivered by Mrs Bell to the Goulburn solicitors, but their letter of 15 September reporting on their receipt of documents does not mention it.
36 The best conclusion which can be made on the facts is that an agreement was made that a mortgage would be granted to secure money which Mrs Shawyer was to advance on the settlement of the purchase by Amberday; the agreement was made by conduct and conversations before and on 22 August 1997 by which time it had been established orally that the rate of interest was 8.5% per annum and the term was three years from the time of the advance; the amount of the advance was spoken of as $140,000 although it was contemplated that the exact amount would be established by the time of settlement and might be a little more; and in a later telephone conversation between Mr Downs and Mr Waters the amount was spoken of as $142,000. The uncompleted mortgage document is not itself the agreement to grant a mortgage, although the conduct of the parties in Mr Downs giving the document to Mrs Bell, her signing it and affixing the seal, and making arrangements to have Mr Patten sign it are evidence of the agreement. The mortgage document is available for consideration as writing or a memorandum evidencing the agreement, but is not itself the parties' agreement.
37 It should not be found that the agreement to grant a mortgage was abandoned or varied by the kind of consideration which Mr Waters spoke of to Mr Downs relating to taking guarantees instead; evidence does not show that Mrs Bell (or Mr Patten) agreed that there should be guarantees instead of a mortgage; notwithstanding the consideration Mr Waters gave to that possibility.
38 On the proof of the facts (which in view of the state of conflict among those concerned might well have been difficult) and in the absence of any competing equitable interest or claims, Mrs Shawyer was in my opinion in a position on 13 February 1998 to enforce her claim to security in respect of the advance against Amberday. To do so it would have had to be proved that the mortgage document incorrectly referred to an advance of $230,000 and should be treated as if rectified to refer to advances of $141,828.14, and to 3 September 2000 as the date of repayment. The memorandum of mortgage is not in my opinion a sufficient writing for the creation of an interest in land within s.23C of the Conveyancing Act 1919 (NSW) or a sufficient memorandum to support proceedings under s.54A of that Act; it fails in both respects because it does not record the terms of the parties' agreement with respect to the amount of the advance or the time of repayment. Notwithstanding these shortcomings, in a situation where there was no competition Mrs Shawyer would have been in a position to enforce the document having regard to the arrangement under which Mrs Bell held the documents, which gave the arrangement the force of an equitable mortgage by deposit of deeds, and by recourse to proprietary estoppel which in my opinion would prevent Amberday from disputing Mrs Shawyer's entitlement after the arrangement had been acted on and the advance had been made.
39 However there is a competing claim and it is necessary to categorise Mrs Shawyer's right as an equitable interest or a mere equity in order to address its place in the competition. Mrs Shawyer's claim was imperfectly constituted, could only be established in a clear way by judicial process, and could not be established in a clear way by inspection of documents, inquiries as to the facts or in any other clear way which could constitute knowledge or notice of its existence. As her entitlement cannot be established in the way prescribed by ss23C and 54A, and cannot be shown in any clear way from any document, but must be established by a claim for equitable remedies in which there is a discretionary element, and in which it is necessary to establish the facts by evidence, findings of facts and the application of rules of law, I am of the view that for the purposes of competition her claim should be categorised as a mere equity. In categorising it as mere equity I contrast it with the entitlement of Mr Wiley to his lien, which is clearly spoken of in the authorities as an equitable interest in the property the subject of a lien. In my opinion then Mrs Shawyer's claim simply does not enter into competition with Mr Wiley's interests and cannot prevail over it.
40 If these views were wrong and it were necessary to determine which was the better equity, my view is that Mr Wiley's interest clearly is the better equity and has the greater claim for protection by equitable remedies. It is fully constituted. Its source is an order of the Court, made publicly and ascertainable by search of the records in the Companies Register, as well as in other ways. By contrast, Mrs Shawyer does not have a fully constituted equitable interest. For over five months means were readily available to Mr Waters acting in Mrs Shawyer's interest to make the existence of the mortgage known, and to make it fully secured, by having the document completed and stamped so as to be registrable, and by registering the document, and those things were not done. Mrs Bell's evidence is to the effect that Mr Waters told her to leave it unregistered; his evidence is to quite a different effect, that he made arrangements with her to register it and assumed that she had done so. Although there cannot be much confidence in the evidence of either I am inclined to accept Mrs Bell's evidence to the effect that in leaving the mortgage unregistered she acted as Mr Waters wished. Other documents which were left in her hands to be stamped and registered were stamped and registered; she had very little understanding of the processes involved, and it seems to me to some degree unlikely that she would omit attending to stamping and registration of one of the documents in her hands unless she had some reason to do so such as would be furnished by Mr Waters' wish that the mortgage be left unregistered. The general vagueness of her evidence, and the state of conflict between them, leave a haze of uncertainty over the events, but to some small degree the probabilities favour accepting what she says.
41 In her evidence Mrs Bell said that at some later stage Mr Waters told her to tear the mortgage up, which she was not prepared to do; I do not accept the evidence that Mr Waters told her to tear up the mortgage, and I do not see what significance that would have if it were true.
42 If the true position were that Mrs Bell did agree to stamp and register the mortgage but failed to do so it would have been quite unreasonable for Mr Waters to leave the tasks of completing stamping and registering the mortgage in the unsupervised hands of Mrs Bell who was a director of the borrower company; and even more unreasonable to carry out no check or supervision by February 1998. Mrs Bell was a very unlikely person to whom to entrust the task of stamping and registering the mortgage; plainly she had no idea of what was involved in those tasks. Mrs Bell as a director of the borrower did not have any strong motivation to see that the tasks were carried out, while Mr Waters if he had chosen to do so could very readily have placed the tasks in the hands of his solicitors, who were quite capable of attending to everything that was required, of taking possession of the Certificates of Title, the transfer and mortgage at settlement or later and seeing to their registration and then retaining the Certificates of Title in Mrs Shawyer's interests. It is unexplained why Mr Waters did not proceed in that ordinary and reasonable way, and why he left Mr Downs to think that he had decided not to take a mortgage at all. It would have been very easy for Mr Waters to give Mr Downs instructions to act in the interest of Mrs Shawyer, or if Mr Downs was not prepared to accept those instructions as well as instructions to act for the vendor, to give such instructions to some other solicitor. Anyone acting with ordinary prudence would have done so.
43 As things stood, there was no line of inquiry which Mr Wiley could take at the time when he accepted office which would have revealed the position. In fact it was represented to him and to his employee before and about the time of his accepting office that the property was unencumbered, and he accepted the appointment in that belief. Almost contemporaneously with accepting office he had searches made in the Land Titles Office and the Companies Registry, and of course neither search revealed any information about Mrs Shawyer's supposed interest. In the circumstances there was no inquiry reasonably available to him, apart from inquiring of Amberday, for the existence of unregistered interests. Mr Waters by leaving the business and the documents in the hands of Mrs Bell had made it possible for Mrs Bell and Amberday to make effectual representations to other persons that the property was unencumbered. No information about the existence of Mrs Shawyer's claim was available to Mr Wiley and his staff until Mrs Shawyer's Caveat was lodged on 23 February 1998, by which time his searches had already been made and he had no occasion to make others. Also by that time he had consented to act as receiver and manager, he had been appointed by the Court, and was not in a position to withdraw without applying to the Court to be discharged and in so doing throwing up a professional responsibility which the Court had committed to him with his consent.
44 The searches which Mr Wiley had made did not precede his consent and his appointment; they were roughly contemporaneous with it, and if he had them made earlier would have produced the same negative results. In Mr Wiley's circumstances, no other lines of inquiry were reasonably open to him, apart from the information furnished to him on behalf of and by Mrs Bell. Counsel offered criticism of Mr Wiley's accepting information conveyed by and on behalf of Mrs Bell at face value; in my opinion there were no circumstances which made it appropriate or reasonable for Mr Wiley to doubt or further to test what he was told. It was also suggested that a further inquiry should have been made of Mr Patten, who was the other director of Amberday; in the circumstances of a contemplated ex parte application for the appointment of a receiver, this was impractical.
45 In a written formal demand dated 16 February 1998 Mr Wiley required Mr Patten to deliver, on or before 18 February 1998, all books and records of Amberday including those in a lengthy attached list, one item of which was "30. Any other deeds or documents". A solicitor representing Mr Patten responded in a message of 17 February 1998 dealing with various documents and saying "With respect to Item 30 we hold no documents but recommend that you contact the solicitors who acted in the purchase of the land Manfred Dougall & Co. We have previously had confirmed by Mr Dougall that they hold the Certificate of Title and mortgage documents to Mrs G. Shawyer." The mortgage document became known to Mr Wiley's solicitor Mr Nikolaidis and to Mr Sean Thomas, who was employed by Mr Wiley and engaged in the administration, on 24 February 1998 when counsel representing Mrs Bell handed Mr Thomas the mortgage documents and the two title deeds, accompanied by statements by Mrs Bell's counsel that he was instructed to hand the documents to the receiver. Counsel said: "These documents were held by Mrs Bell's solicitor and he has forwarded them to me and asked me to pass them on to the receiver. This is a mortgage which Mrs Bell signed. She did not at any time deliver the mortgage and in fact, was asked by Mrs Waters to tear it up. Instead she gave all these documents to her solicitor. Nobody knows they are in existence. Your client can do with them what he chooses." Counsel went on to say that the property was unencumbered and the mortgage was useless, it was never delivered and that Mrs Bell never parted with possession of the mortgage or the title deed. It was not suggested by Mrs Bell or her counsel on the occasion when the documents were delivered that the solicitors held them for Mrs Shawyer. Mr Wiley did not actually know of these events for some time, although he is bound in conscience by any knowledge of his solicitor and his staff member to whom he had entrusted the conduct of relevant affairs.
46 Mrs Bell's solicitors did not act in accordance with the indication given by Mr Patten's solicitors that Mrs Bell's solicitors held the mortgage on account of Mrs Shawyer; if they held the documents on account of Mrs Shawyer they had no business handing them to the receiver. The incomplete state of the mortgage shows, and would suggest to any person who inquired for and saw the document, that it had not ever had the close attention which it would receive if it was regarded as important, or as taking effect. The fact that an uncompleted mortgage document and the Certificates of Title were in the control of a director of the borrower and were delivered to the receiver of the borrower were indications that there was no equitable mortgage by deposit of deeds or in any other way, not an indication that there was an equitable mortgage. The indications were made stronger by the information that was given earlier to Mr Thomas and Mr Wiley that the property was unencumbered, and by the information which accompanied the delivery of the documents. In the circumstances delivery of the mortgage did not constitute notice of an interest or claim of Mrs Shawyer. The indications were to the contrary of the existence of such a claim.
47 Mr McEwen of Kell Heard & McEwen wrote to Mr Wiley on 2 March 1998 on behalf of Mr Waters and asserted "We are instructed that a mortgage was executed by the company in her favour and that mortgage was previously supposedly held by Messrs Manfred Dougall & Co Solicitors, Goulburn." Mr McEwen went on to say that Mr Dougall advised that all documents held by him on behalf of Amberday had been handed to a receiver, and asked Mr Wiley to forward the mortgage to Mr McEwen's firm immediately it was located. This was not a clear assertion that the mortgage was effective. After a conversation with Mr Sean Thomas, Mr McEwen wrote again on 4 March asserting "The loan was to be secured by a mortgage over the property and a charge of the business and guarantees by each of the directors. We understand that a mortgage was prepared and executed under the seal of the company, but this mortgage was not returned to Mr Waters for the purposes of registration. We understand the mortgage was last in the possession of Mrs Sue Bell, who has indicated that she passed this on to her solicitor. Her solicitor denies having the documents. Could you please advise if you hold it." This too was not a clear assertion that the mortgage was effective. (The suggestion made in Mr McEwen's letter of 4 March 1998 that there was to be a charge over Amberday's business is not borne out by any evidence.) Curiously Mr McEwen did not mention the caveat in these letters, although it had been lodged on 25 February.
48 Mr Wiley at first replied on 6 March 1998 that he was not aware of any mortgage document; however it was actually in his office and he soon came to know of it. He did not deliver it up to Mr Waters or his solicitors, but retained it until he was required to produce it in litigation. Mr Wiley was not in a position to know what the facts were relating to the execution of the mortgage and its being held by Mrs Bell and delivered to Mr Wiley as receiver and manager of Amberday, accompanied by the assertions by Mrs Bell's counsel to which I have referred, until the hearing of the proceedings before me, as Mrs Bell did not make an affidavit in the proceedings and was called by the plaintiff to give her evidence in chief orally. Indeed Mr Wiley was not even then in a position to know clearly what the significance of the document was or whether it was effective; that information comes to him with this judgment. No significant further knowledge or notice about the mortgage was available to him by 14 April 1998 when Amberday went into liquidation and the period to which his indemnity relates closed.
49 By leaving the mortgage and the Certificates of Title in the control of Mrs Bell, Mr Waters put Amberday in a position to represent, in a way which could not be disturbed by information otherwise available to a person dealing with Amberday, that the property was unencumbered; and representations to that effect were made to Mr Thomas before Mr Wiley consented to act and again to Mr Wiley at about the time he consented to act. Mr Waters also, as I have found, made arrangements under which Mrs Bell left the mortgage unregistered. The mortgage was not and has never been registrable, even if it were lodged at the Land Titles Office with the Certificates of Title, because it has not been accepted by anyone on behalf of Mrs Shawyer (and Mr Downs, who is referred to in the document as the person to accept it for her but has not done so, has never had authority to accept it). It requires several material corrections including Mrs Shawyer's name and the amount of the advance, and also requires the addition of dates and other material at a number of blank spaces. (There is no statement of the prior encumbrances, but Mr Downs' evidence is that this is not necessary and I notice that the Transfer which was registered is also incomplete in this respect). In these circumstances Mr Wiley's claim is, by an overwhelming preponderance, a better equity than Mrs Shawyer's claim.
50 Four payments on account of interest were made; the first three by cheques of Amberday and the fourth in cash after Amberday's bank had withdraw its services. At one part of his submissions plaintiff's counsel asserted that the plaintiff was entitled to specific performance of the agreement to grant a mortgage under the doctrine of part performance. In my opinion there are no unequivocal acts of part performance of the agreement to grant a mortgage; the execution of the mortgage document, given its imperfections is highly equivocal and the payments of interest, while confirming that there was an agreement for a loan and interest, are not unequivocally referrable to an agreement to grant security. On making a payment as acts of part performance see Australian and New Zealand Banking Group Ltd v. Widin [1990] 26 FCR 21 at 23-24 per Wilcox J and at 33-37 per Hill J. Even if (contrary to the received Australian view) payments of money can be acts of part performance, the payments of interest made in this case could not as a matter of fact be regarded as unequivocally referrable to an agreement to grant a mortgage.
51 In my opinion Mr Wiley is in the position of a purchaser for value with respect to his equitable lien. My conclusion at 425 of Double Bay Newspapers is applicable in the present case; namely
The conclusion which I base on their observations is that a mere equity, meaning a claim to have an equitable interest which can only be enforced by succeeding in some claim to a court for equitable relief (such as a claim for rectification, a claim to set aside a conveyance obtained by fraud or (as I think) a claim the enforcement of which depends on the doctrine of part performance) does not participate in competitions of priorities with equitable interests which have been acquired in good faith, for valuable consideration and in a manner which can be clearly shown without obtaining any decision of the court upholding them.
52 In my opinion Mrs Shawyer's claim for security is not enforceable in the winding-up and the caveat should be withdrawn.
53 Orders