Van der Merwe v Cantale

Section 74O of the Real Property Act

1. When the matter was before me yesterday in the duty list, there was some debate in relation to the proper construction of s 74O of the Real Property Act, and the application of the reasoning of Tadgell J in the Sinn v National Westminster Finance case in relation to the present issue. When the matter was back before me today, additional material was relied upon by the applicant in relation to that issue and, in particular, I was provided with certain of the secondary materials in relation to the introduction of s 74O and amendments thereto, and references made in the second reading speech in the legislative assembly in 1996 in relation to the amendment to that section.
2. It is relevant to note that Tadgell J's decision was in 1984; and that the insertion of s 74O into the Real Property Act was in 1986 (by the Real Property (Caveats) Amendment Act 1986 (NSW)), some two years after the decision of Tadgell J in Sinn v National Westminster Finance; and that s 74O was later amended in 1996 (by the Real Property Amendment Act 1996 (NSW)). (I add here that the 1996 amendment retained the chapeau to the section in its earlier form and, relevantly in the applicant's submission, amended the concluding words of the section to read "and the same caveator lodges a further caveat with the Registrar-General in respect of the same estate or interest …" in lieu of the previous wording, which read "any further caveat lodged with the Registrar-General by the same caveator in respect of that estate or interest …". The applicant here places weight on the change from "that estate" to "the same estate".)
3. The proposition put for the plaintiffs is that the decision of Tadgell J is determinative of the issue in relation to s 74O in the present case. Relevantly, in Sinn v National Westminster Finance, Tadgell J (there considering the applicable Victorian legislation) concluded that he could not see how an equitable interest by way of mortgage or charge in the entirety of a parcel of land could be said to be the same as an equitable interest by way of mortgage or charge in the interest of one of two joint tenants in the same land. Relevantly, his Honour said as follows (at 366-367): The question for decision, then, seems to be whether the mortgagee claimed and specified in the second caveat an interest that was the same interest as that claimed and specified in the first caveat. In my opinion the two interests claimed were not the same. In other words, the claim made by the second caveat was not a claim made in respect of the same interest as that in respect of which the claim was made in the first caveat. In the first caveat what was claimed was an equitable interest as mortgagee in the whole of the land registered in the names of Mr. and Mrs. Sinn. In the second caveat what was claimed was an equitable interest as mortgagee in the interest of Mr. Sinn in the land registered in the names of Mr. and Mrs. Sinn. In each case the claim was of course necessarily of an equitable interest and the caveator made it qua mortgagee. There was, however, a great difference between the nature and incidents of the equitable interest claimed in the first caveat and that claimed in the second. The first caveat claimed an interest which, if sustained, would have entitled the mortgagee to an equitable mortgagee or charge over the whole of the land comprised in the relevant certificate of title; and it was an interest that was not defeasible by the death of Mr. Sinn. The second caveat, however, claimed an interest which, if sustained, would have entitled the mortgagee to an equitable mortgage or charge over only Mr. Sinn's interest in the land. If he were to die during the subsistence of the equitable interest it would, it seems, cease upon registration of a transmission of the survivorship: Lyons v Lyons [1967] VR 169, and Whelan, The Torrens System in Australia, 1982, p. 106. I cannot see how an equitable interest by way of mortgage or charge in the entirety of a parcel of land can be said to be the same as an equitable interest by way of mortgage or charge in the interest of one of two joint tenants in the same land.
4. Counsel for the plaintiffs noted that there has been a citation of the decision in Sinn v National Westminster Finance by Slattery J in Gilles v Penson [2014] NSWSC 1585 at [30], and in the text in Woodman and Nettle at [RPA.74O.10]. Notably, Slattery J referenced the decision of Tadgell J at [30] of his judgment as follows: 30. The question arises as to whether Ex 1 is "based on the same facts as the first caveat". Authority indicates that s 74O should be construed widely, not narrowly, to promote the purpose of the section, because were the phrase to be construed narrowly, it could allow interests defined in a legalistic and technical way to escape the section: See McCulloch v Fern (2000) 10 BPR 18,073 at [7]; and Sinn v National Westminster Finance Ltd [1985] VR 363; Gurwitz v Gurwitz (1988) V ConvR 54-317; and Taylor v Commonwealth Development Bank of Australia (1992) ANZ ConvR 161.
5. As to Woodman and Nettle, Tadgell J's decision was cited in the following context (at [RPA.74O.10]): As to whether a caveat is lodged "in respect of that estate or interest and purporting to be based on the same facts as the first mentioned caveat", see Sinn v National Westminster Finance Ltd [1985] VR 363; Gurwitz v Gurwitz [1988] V ConvR 54-317. As noted by Young J in Taylor v Commonwealth Development Bank of Australia (1992) ANZ Conv R 161, it may be difficult for the Registrar-General to gauge whether a second caveat is on the same grounds as the first, especially where the caveats are worded differently. Given that the purpose of the section is to restrict the obstructive use of successive caveats based on essentially the same facts, the words "the same interest" should be construed widely, not narrowly. This assists in promoting the purpose of the section; for if the phrase were construed narrowly, it could allow interests defined in a legalistic and technical way to escape the section: McCulloch v Fern (2000) 10 BPR 18073; [2000] NSW ConvR 55-952; [2000] NSWSC 729 at [7] (interest described as a resulting trust in one caveat, and as an implied or constructive trust in a later caveat, held to be the "same" interest).
6. The applicant's position is that the decision of Tadgell J is not determinative in the present case because of the difference in the wording of the relevant statutory provisions as between s 91(4) of the Transfer of Land Act 1958 (Vic) (Transfer of Land Act) and s 74O of the Real Property Act. In particular, a distinction is drawn by the applicant between s 91(4) of the Transfer of Land Act (which provides that a caveat that has lapsed or been removed shall not be renewed by or on behalf of the same person in respect of the same interest) and s 74O (which commences with the words "[t]his section applies if a caveat lodged under a provision of this Part in respect of any particular estate or interest in land").
7. I have also been taken by Counsel for the plaintiffs to a decision of McDougall J in Awadallah v Hymix Australia Pty Limited (2015) 17 BPR 33,953; [2015] NSWSC 117 (at [47]-[50]) where his Honour considered the interest of joint tenants in respect of land. Relevantly, his Honour noted that it did not follow that a charge given by one joint tenant only over his interest is a charge also over the interest of the other joint tenant.
8. The issue that is raised on the current application is one that does not in terms appear to have been considered, albeit that a very similar issue was considered by Tadgell J in Sinn v National Westminster Finance. Reference is also made by the applicant to the decisions of Hamilton J in McCulloch v Fern (2000) 10 BPR 18,073; [2000] NSWSC 729 and Palmer J in FTFS Holdings Pty Ltd v Business Acquisitions Australia Pty Ltd (2012) 12 BPR 23,517; [2006] NSWSC 846.
9. Counsel for the plaintiffs contends that it is not permissible or appropriate in the present case to have regard to the secondary materials in relation to the amendment of the introduction, and amendment of s 74O of the Real Property Act in circumstances where, having regard to High Court authority on the proper approach to the construction of legislation, one would primarily look at the text and context of the legislation before looking at secondary materials. (I add that although Counsel for the plaintiffs did not identify any particular authority in this context I would here refer to cases such as CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384; [1997] HCA 2 (CIC Insurance) at 408 per Brennan CJ, Dawson, Toohey and Gummow JJ; Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27; [2009] HCA 41 (Alcan) at [47] per Hayne, Heydon, Crennan, Kiefel JJ; SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362; [2017] HCA 34 at [14] per Kiefel CJ, Nettle and Gordon JJ (their Honours there citing Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 at [69]-[71]; Alcan at [47]; and CIC Insurance at 408. See also, more recently, R v A2; R v Magennis; R v Vaziri (2019) 373 ALR 214; [2019] HCA 35 at [32]-[33] per Kiefel CJ and Keane J (with whom Nettle and Gordon JJ agreed).)
10. In any event, I do not consider that the secondary materials to which I was taken on the present application add greatly to the consideration of the proper construction of the section. More relevantly, I note that it is recognised in the authorities that the purpose of the section is to restrict the obstructive use of successive caveats based on essentially the same facts, and that the words, "[t]he same interest", should be construed widely and not narrowly. It has been said that this assists in promoting the purpose of the section for, if the phrase were construed narrowly, it could allow interests defined in a legalistic and technical way to escape the section.
11. Approaching s 74O of the Real Property Act in that way, the section is applicable if a caveat lodged under a provision of the relevant part "in respect of any particular estate or interest in the land" (my emphasis), among other things, subsequently lapses or is withdrawn or lapses under s 74MA of the Real Property Act and the same caveator lodges a further caveat "in respect of the same estate, interest or right and purporting to be based on the same facts as the first caveat".
12. The particular estate or interest in the land in respect of which a caveat was lodged in the first instance by the plaintiffs in the present case was the estate or interest of the two registered proprietors in the land. Applying the reasoning of McDougall J, it seems to me that that would mean, in respect of each of the particular joint tenants who together were the joint proprietors of the land, that the particular estate or interest of each in the land (in the first caveat) was that person's interest as joint tenant in the property. When approached in that fashion, there is no doubt that the further caveat that has been lodged by the plaintiffs is in respect of the "same estate, interest or right" of Mr Cantale in the land as the "particular estate or interest" in respect of which the caveat was lodged in the first caveat.
13. I think it is not irrelevant, particularly when I come to look at issues in relation to the balance of convenience, that there have been other avenues that have been foreshadowed in relation to the preservation of the claimed rights of the plaintiffs in relation to the security over the land, namely an application for an injunction either to restrain the sale, or for an application for moneys to be paid into court (and I add that, as noted, no injunctive relief has been pursued).
14. In any event, I am of the view that s 74O of the Real Property Act here applies, and that an order should be made for the withdrawal of the further caveat that has been lodged in relation to the claimed equitable charge, and I will so order.

Caveatable interest

1. The second basis on which the order for withdrawal of the caveat was lodged therefore does not strictly arise, or is not strictly necessary to be determined. Nevertheless, I will briefly note that the second basis on which the application for removal of the caveat was brought was that there is not a caveatable interest in the property, and that turns on the amended commercial arrangements document.
2. At this stage, all that needs to be shown is simply that there is a serious question to be tried as to that issue, and it is not appropriate here to make a final determination in relation to that issue.
3. Whether or not there is a caveatable interest in the property raises issues such as the construction of: cl E of the agreement set out above, which provides by way of security, a caveat over the Abbotsford land "[i]n the event SCBS fails to comply with its obligations under the Building Contracts and this Agreement" (which is characterised by the applicant as being a condition precedent that has not yet arisen); and cl I of the agreement, which provides that, in the event of a default on the part of SCBS and for the purposes of securing payment of all amounts owing by SCBS, Mr Cantale as guarantor agreed to charge all of his rights, property and undertaking in the Abbotsford property.
4. There has been affidavit evidence by both Mr Cantale and Mr Van der Merwe in which contrary assertions are made as to whether there are defects in the property and the like. I have read that affidavit evidence as assertion only. Nevertheless, I have been taken to the building contract, and the provisions in relation to defects in the building contract (see cl M11, and in particular, the definition of defects or defective work), and I note that there is no evidence of a failure to fulfil obligations under the amended commercial arrangement other than Mr Van der Merwe's affidavit evidence and assertions contained in a letter of 17 April 2021. There is nothing to suggest that there have been formal defect notices issued in respect of which there has been non-compliance.
5. Consequently, it was the applicant's submission that the right to lodge a caveat over the property was subject to a condition precedent, that being a default (in repayment of the loan or in the failure to comply with the obligations contained under the building contracts in the agreement); and that no such default has occurred (see T 6-7); and thus, that a charge had not been created and therefore there was no caveatable interest (the applicant submitting also that, on its proper construction, the agreement related only to the loan and not any other overruns or other claims that might arise).
6. Further, and significantly, the amended commercial arrangements document includes an express forgiveness of the loan of $450,000 in full if certain completion requirements are satisfied (and the letter of 17 April 2021 would seem to suggest that, as at that date, those requirements had been satisfied - the complaint in effect being a complaint of cost overrun, rather than of defects or the like).
7. I also note that the loan itself is not repayable in accordance with the amended commercial arrangements document until 31 December 2021. So that, even if it is not forgiven, the loan would not yet be repayable, and there would be an issue as to whether or not there was at this stage any charge, depending on how the terms of the amended commercial arrangements document were to be interpreted.
8. I also note that I have been taken to the decision of Harrison J in Zelic v Barisic [2018] NSWSC 1346 where his Honour referred (at [10]-[12]) to the principles in relation to the withdrawal of caveats, and included reference to the decisions of Brereton J, sitting at first instance as his Honour then was, in Buchanan v Crown & Gleeson Business Finance Pty Ltd (2006) 13 BPR 24,513; [2006] NSWSC 1465 from [8]-[12], and Tadrous v Tadrous [2009] NSWSC 407 at [8].
9. Had the issue of balance of convenience arisen for determination in the present case, one of the factors that would have been relevant to take into account is that the claim that is said to be secured over the property could only be secured over the interest of Mr Cantale, and that the effect of the preservation of the caveat would be to impede the ability of Mrs Cantale to deal with her interest in the property. This is particularly relevant in circumstances where injunctive relief has in the past been foreshadowed and not sought. I would have been inclined to the view that the balance of convenience favoured the withdrawal of the caveat, even in circumstances where there was a serious question to be tried as to the existence of the caveatable interest.
10. Nevertheless, given the conclusion I have reached in relation to s 74O, that does not arise.

Submissions following ex tempore reasons - s 74O

1. I interpose here to add to the reasons that I gave orally at the conclusion of the argument to note that Counsel for the plaintiffs then immediately sought a stay of the orders that I had pronounced (see below) on the basis of her instructions to approach the Court of Appeal. The question of a stay was not ultimately necessary to determine, as a regime was agreed between the parties whereby part of the sale proceeds were to be paid into Court in the interim of any application to the Court of Appeal. However, I note that in the course of that application Counsel for the plaintiffs informed me that her understanding was that the amended summons had been filed in Court before Rein J but dismissed on the basis that the caveat was defective because it was over the two interests and that the reason the second caveat had been filed was to deal with that defect. It was submitted that the caveat had been dismissed as defective and that this was a further matter that spoke to the proposition that s 74O of the Real Property Act was not engaged in those circumstances. I note this simply to make clear that as far as I could see from the Court file then before me was that what his Honour dismissed on 25 August 2021 was the application for extension of the caveat and that, thereafter, the caveat lapsed in accordance with the lapsing notice. It may well be that the reason the application was dismissed on that occasion was that his Honour considered the caveat to be defective. However, it is inaccurate (at least by reference to the Court record) to suggest that the "caveat has been dismissed as defective"; what was dismissed was the application for extension of the caveat; and the caveat subsequently lapsed (the subsequent lapse of the earlier caveat being one of the three contemplated by s 74O of the Real Property Act). Hence, the question is simply whether the caveat which lapsed was in respect of any particular estate or interest in land and the subsequent caveat was in respect of the same estate or interest (since there is no dispute that the two caveats were lodged by the same caveators and that they were based on the same facts). I accepted the applicant's submission that the decision of Tadgell J in Sinn v National Westminster Finance was distinguishable having regard to the different wording of the respective statutory provisions.

Orders

1. For those reasons, I will make the orders sought in the notice of motion. 1. An order pursuant to s74MA of the Real Property Act 1900 (NSW) that the first and second plaintiffs withdraw caveat AR378107 forthwith. 2. Order that these orders be entered forthwith. 3. Order that the first and second plaintiffs pay the defendant's costs of the motion.

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