19 Secondly, although it is correct that the prevailing view is that, when evaluating the beneficial interests in property of persons who have contributed to the purchase money in shares different to those in which title is taken, it is relevant to have regard to payments towards the costs of acquisition, as well as to the purchase price itself, it does not follow that a loan of money for the purpose of paying stamp duty has the consequence that a beneficial interest in the property acquired results. Ultimately, that will depend on the intention of the parties, actual or implied.
20 In this case, the evidence, so far as it goes, does not suggest that in the event that Mr Abboud purchased the property, even in his own name, the advance of moneys for the purpose of funding stamp duty was to result in Mr Warden obtaining an equitable interest in the land. The moneys were advanced, not as a contribution to the purchase price (including costs of purchase), but as a loan repayable on terms. A loan does not give the lender an interest in land acquired with the advance, unless it is a secured loan. When money is advanced as a loan, as distinct from as a contribution to purchase price, generally speaking the moneys, once received by the borrower, become the property of the borrower and can be used by the borrower however the borrower pleases. That is so, even if a particular purpose has been contemplated when the loan was applied for - although, where the loan contract contains a term that the proceeds be used only for a particular purpose, to apply them for another purpose may be a breach of the loan contract. Here, there does not appear to have been any express term that the loan moneys were to be used only for the contemplated purpose, but even if there were, and there were a breach of that term, that would be a breach of contract, but not a basis for finding an equitable interest enforceable against third parties such as the registered proprietors.
21 For those reasons, I am not satisfied that the caveator has a seriously arguable claim to an equitable interest of any kind in the land the subject of the caveat.
22 If I were wrong in that conclusion, I would nonetheless refuse to extend the operation of the caveat having regard to the balance of convenience. The evidence clearly shows that there is no remaining equity in the subject property. Mr Young concedes, I think with respect quite correctly, that the caveator could not sustain a claim for priority over the first mortgagee or the second mortgagee, Mr Power, who has lodged an earlier caveat. Nor do I think there is any reasonable prospect of his sustaining a claim for priority over the Crown's land tax claim, but it is not necessary to go so far. The result is that, out of the proceeds of sale, there will be insufficient to pay out even the second mortgagee, let alone the other prior caveators. In those circumstances it is the practice of the court to order the withdrawal of the caveat, because on the balance of convenience those having higher priority claims are entitled to have them satisfied, and the subsequent caveator has no entitlement to prevent them from doing so.
23 My orders are:-
1. Order that the claim for relief in paragraph 5 of the plaintiff's notice of motion filed 5 October 2006 be dismissed.