DISTRICT COURT OF QUEENSLAND

1. [1]
   The plaintiffs’ claim is for compensation under s. 130 of the Land Title Act 1994. It provides:

130Compensation for improper caveat

(1)A person who lodges or continues a caveat without reasonable cause must compensate anyone else who suffers loss or damage as a result.

……….

2. [2]
   Mr Jiminez is a long haul truck driver. He and his wife (the plaintiffs) bought a house at Lever Court, Ningi, in 1996. In February 2004, they bought some land at Beerwah. They mortgaged both properties to the National Australia Bank.

3. [3]
   Mr Jiminez and his wife found themselves in financial difficulty. They left the home at Ningi and moved to his parents’ home at Woollongong in New South Wales. They rented the Ningi property to some people called Humphrys.

4. [4]
   Mr Jiminez gave evidence that he and his wife formed a plan to get themselves out of difficulty. It involved selling the house, refinancing their debt away from the NAB and developing the land at Beerwah.^[1]

5. [5]
   In May 2005, Mr Jiminez and Mr Bugg had two discussions, the first on the telephone and the second in person at a BP Service Station on the Bruce Highway at Burpengary.

6. [6]
   Their discussions led to the execution of a contract for the sale of the Ningi property for $270,000, not subject to finance and requiring no deposit. The central factual dispute is whether the parties had orally agreed that Mr Bugg was to pay $55,000 to Mr Jiminez in addition to the contract purchase price.

7. [7]
   I will first set out my reasons for finding that the two men did reach this agreement before analysing the legal consequences argued for on each side. The central legal issues are: (i) who bears the onus of proof on the question of “reasonable cause”?; (ii) what must be proved?; and (iii) the issue of compensation.

8. [8]
   Mr Jiminez’s account of the negotiations was as follows. Mr Bugg rang him on 12 May 2005, inquiring about the property, having heard from a neighbour that it was for sale. He told Mr Bugg he wanted $350,000 for the house at Ningi. Mr Bugg asked whether Mr Jiminez would take his car, a Holden Monaro worth about $45,000, as part of the purchase price. Mr Jiminez declined that request, making it plain that he needed cash “upfront” to help him “pay out the NAB”. By that, he explained with the assistance of his counsel, he meant to pay the arrears on the mortgages. He also wanted money immediately in order to start work on the Beerwah land.^[2] The men arranged to meet at the Burpengary truck stop to talk further.

9. [9]
   On 16 May 2005, Mr Jiminez stopped at Burpengary on his way to Cairns. Again, Mr Bugg raised the option of giving his car as part payment. Again Mr Jiminez refused it, saying he needed cash. After much discussion they settled on a purchase price of $325,000, “on the proviso that he comes up with the 55 grand cash”.^[3]Mr Jiminez told Mr Bugg the signed contract would be left with his solicitor and, upon Mr Bugg producing the cash “there will be an exchange of contracts at my solicitors”.^[4]Mr Jiminez also told Mr Bugg he had to arrange a refinancing before he could proceed.^[5]

10. [10]
    Mr Bugg’s account of the negotiations was as follows. He was told by a friend, who lived next door to the plaintiffs’ property, that Mr Jiminez was in financial trouble and the house was for sale. He telephoned Mr Jiminez expressing his interest in buying the property on terms whereby he would not require a finance clause. Mr Jiminez said he was “keen to get something done as quick as possible because he was in a bit of trouble”^[6] and they agreed to meet at the truckstop at Burpengary.

11. [11]
    Between the telephone call and the meeting at Burpengary Mr Bugg went to the property and noticed certain problems with it – termite damage, an inadequately erected pool fence, a wiring problem and damage to the verandah.^[7]

12. [12]
    At the Burpengary meeting, Mr Jiminez first sought $350,000 for the property, then $330,000 before asking $325,000. Mr Bugg told him that, considering the problems with the property, his best offer would be $270,000, which Mr Jiminez ultimately accepted. Mr Jiminez wanted the sale to proceed quickly so Mr Bugg undertook to see his solicitor, Mr Hoolihan, and have a contract prepared. Although he owned a Holden Monaro and drove it to the Burpengary meeting, Mr Bugg denied he had sought to tender it as part of the purchase price. He denied agreeing to pay $55,000 cash before the contract would take effect and also that Mr Jiminez had told him he needed to refinance his debts before proceeding.

13. [13]
    I accept, and ultimately there was little dispute about it, that the telephone conversation was held on 12 May and the meeting at Burpengary on 16 May 2005.

14. [14]
    What occurred thereafter is not entirely agreed but the documents and correspondence and the evidence of Mr Davis, whose firm, Griffiths Parry, then acted for the plaintiffs, support certain findings.

15. [15]
    Mr Bugg instructed his solicitors, S.J. Hoolihan and Associates, to prepare a contract. It was sent to the plaintiffs on 25 May 2005. On 30 May, 2005, Mr Jiminez sent by facsimile, to the attention of Mr Hoolihan, the special conditions. This document (exhibit 2) became part of the contract. It read:

The buyer acknowledges that there are no final inspection or certificates from the local authority in respect of the veranda and shed located on the property.

The buyer here by accept to make no objections in relation there to.

16. [16]
    The document then reads, “Can you call Carl ASAP on ….. , thanks Stephen.”

17. [17]
    Mr Jiminez gave evidence that Mr Hoolihan rang him and that during the telephone conversation Mr Jiminez “brought it to his attention, you know, there is no mention of the 55 in the deal. There is only 270.”^[8]Mr Hoolihan then became rude and angry, saying he knew nothing about it. It is unnecessary to decide whether this conversation occurred but it is logical that there was a telephone conversation – Me Hoolihan was requested to ring Mr Jiminez – and no evidence contradicted Mr Jiminez.

18. [18]
    Mr Jiminez’s evidence of his expression of concern to Mr Hoolihan is consistent with his own earlier evidence that, although he noticed the conditions were not included in the contract prepared by Mr Hoolihan, “my prime concern was the figure, of course.”^[9]It is also consistent with his curious answers in cross-examination:

“ – No. My main concern was that there was 270 on the contract and there was no mention of the 55.

But you still didn’t insert the 55,000 into that letter?—I didn’t have to.”^[10]

19. [19]
    It is not consistent with certain evidence of his solicitor, Mr Davis. On 1 June 2005, Mr Jiminez went to Mr Davis’ office with the contract. He told Mr Davis he needed refinancing to be able to release the mortgage at settlement. Mr Davis gave evidence that Mr Jiminez left the contract, signed by the plaintiffs, with Mr Davis “to be held pending approval of refinance and payment to [Mr Jiminez] by buyer of $55,000 for plant and equipment.”^[11]Mr Davis recommended that these conditions be in the contract but Mr Jiminez “was insistent they were not to be in the contract.”^[12]

20. [20]
    Mr Davis’ notes of the meeting included: “We not to release contract until buyer attends at our office to pay $55,000”.

21. [21]
    Mr Davis had no part in the release of the contract from his firm’s office. The only “evidence” about that comes from correspondence exhibited in the trial. What is uncontested is that on 6 June 2005, Mr Bugg went to the offices of Griffiths Parry with a member of Mr Hoolihan’s firm, who went inside and obtained the contract, apparently under cover of a Griffths Parry letter prepared by the conveyancing clerk.^[13]Mr Bugg signed the contract outside the office and continued on his way. His solicitors delivered the executed contract to Griffiths Parry under letter dated the same day.^[14]So, the contract bears the date, “6/6/05”.

22. [22]
    Hoolihan & Associates wrote on 7 June 2005 enclosing transfer documents.^[15]

23. [23]
    Mr Davis’ next involvement seems to have been to write, on 9 June 2005, to Hoolihan & Associates stating that certain conditions precedent, which he did not set out, had not been performed. So, the contract, by then executed, was void.^[16]

24. [24]
    The plaintiffs’ account of the events of 6 June 2005 is to be gleaned from a letter written by Griffiths Parry to Hoolihan & Associates on 8 July 2005. The letter includes,

“ .. your Mr Hoolihan telephoned our firm and spoke to an employee who was unfamiliar with this matter, and in particular, was unaware of the outstanding conditions precedent referred to above. Your Mr Hoolihan advised that he was aware that we held a contract which had been signed by the seller and which had to be signed by his client (the buyer) as soon as possible. Your Mr Hoolihan then made arrangements for someone from his office to immediately attend at our office to collect the contract. Shortly thereafter the contract was collected from our office by someone purporting to be an employee of your firm. The fully executed contract was returned to our office five minutes later.”^[17]

25. [25]
    In his reply, dated 9 July 2005, Mr Hoolihan agreed he had telephoned Griffiths Parry on 6 June 2005, asking to speak to Mr Davis. He was advised Ms Kerry Holland was dealing with the matter. He continues,

“Ms Holland is well known as your firm’s conveyancing clerk and is well known to the writer. She is undoubtedly competent and experienced.

During this conversation Mr Bugg and a staff member were present in the writer’s office. Mr Bugg was consulting on another matter. The writer was prompted to ring your office by Mr Bugg, who told the writer Mr Jiminez told Mr Bugg the contract had been sent back to your office. Mr Bugg further instructed that Mr Jiminez wanted the contract signed immediately or the deal would be off. Your client was said to have complained the matter had taken too long.”^[18]

26. [26]
    Neither Ms Holland nor Mr Hoolihan was called to give evidence. Mr Bugg gave evidence consistent with Mr Hoolihan’s.^[19]It is not necessary to decide whether there was mischievous conduct jointly by him and Mr Bugg designed to wrest the executed contract from the plaintiffs’ solicitors and thereby subvert an orally agreed pre-condition.

27. [27]
    There was no dispute that during a phone call Mr Jiminez told Mr Bugg the contracts were signed and with the plaintiffs’ solicitors. Mr Jiminez’s account included a discussion about a receipt being made available to Mr Bugg.^[20]

28. [28]
    At 1 June 2005, the plaintiffs were indebted to the National Australia Bank on the Beerwah property in the amount of $190,292.73, and on the Ningi property for $228,964.13. That is, the plaintiffs’ debt was about $419.000. The plaintiffs had obtained finance approval from Circuit Finance Australia Ltd, in relation to the Beerwah land, for an advance of $152,000.^[21]After deducting fees related to that approval, the plaintiffs could expect an advance of $112,808.^[22]On these figures, the plaintiffs needed to raise at least $305,000 by selling the Ningi property in order to keep the Beerwah property and discharge the debts to the NAB.

29. [29]
    Two valuers, whose reports were tendered by consent, considered the Ningi property was valued at $340,000 at times relevant to this case.^[23]

30. [30]
    Mr Bugg lodged the caveat on 16 June 2005.The grounds of claim were, “Pursuant to a contract of sale dated 6 June 2005 between [the parties]”.^[24]He commenced proceedings by claim in the Supreme Court filed 13 July 2005 for specific performance of the contract.^[25]A defence was filed on 30 November 2005,^[26]which led to the dismissal, apparently by consent, of an application for default judgment.^[27]

31. [31]
    The plaintiffs, as defendants in the Supreme Court, pleaded that the parties entered into an oral agreement for the purchase of the Ningi property for $325,000, the terms of the agreement including that upon [Mr Bugg] providing cash or a cheque in the sum of $55,000, [the plaintiffs] would provide him a signed contract of sale in which the purchase price would be $270,000. The plaintiffs did not, in those proceedings, counterclaim for compensation for a breach of s. 130 of the Land Title Act.

32. [32]
    Neither Mr Jiminez nor Mr Bugg was a particularly convincing witness but I am satisfied, on the balance of probabilities, that they agreed that Mr Bugg would pay $55,000 to Mr Jiminez before the “exchange of contracts”. It is simply unlikely Mr Jiminez would have agreed to a reduction in his asking price, from $350,000 to $270,000, despite his financial concerns, considering such a sale would not have achieved his asserted purpose of ridding himself of the NAB debts. The valuation evidence makes a purchase price of $325,000^[28] appear more realistic than one of $270,000. Also, there being no other form of deposit provided for in the contract makes the asserted oral arrangement more likely.

Onus of proof

33. [33]
    The parties disagree as to who bears the onus of proof under s. 130.

34. [34]
    In Farvet Pty Ltd v Frost [1997] 2 Qd R 39, Demack J. decided that the onus that had always been upon a claimant for compensation under s. 103 of the Real Property Act 1861, in respect of a caveat lodged or continued without reasonable cause, was also upon a claimant under s.130. At that time, subs. 130(3) provided:

(3)In a proceeding for compensation under subsection (1), proof that a caveat was not lodged or was not continued without reasonable cause rests on the person who lodged or continued the caveat.

35. [35]
    Demack J., after referring to the reasons of Kirby P. in Beca Developments v Idameneo (No 92) (1990) 21 NSWLR 459, said:

‘Indeed, if it was intended that the onus of proof be shifted it could have been expressed more conveniently thus:

“The lodging and continuing of a caveat is presumed to be without reasonable cause unless the person lodging and continuing the caveat proves otherwise.’” [1997] 2 Qd R 39 at 46

36. [36]
    The legislature has taken heed. Section 130 was amended by Act. No 28 of 1997 so that subs. (3) now provides:

(3)In a proceeding for compensation under subsection (1), it must be presumed that the caveat was lodged or continued without reasonable cause unless the person who lodged or continued it proves that it was lodged or continued with reasonable cause.

37. [37]
    The heading to the section, “Compensation for improper caveat”, adds nothing to what must be proved. The word “improper” describes the caveat, not the conduct of the caveator. It is nothing but a shorthand description of the caveat described in the body of the section. By contrast, the New South Wales provision considered in Beca Developments made liable to pay compensation “any person who, wrongfully and without reasonable cause” did various things including lodging a caveat. In the result, Beca Developments does not assist in the construction of s. 130 in its present form.

38. [38]
    In the result, the onus is on the defendant to prove that the caveat was lodged with reasonable cause.

39. [39]
    The defendant asserts he had reasonable cause to lodge the caveat because he says he had a recognised caveatable interest, there being a properly executed written agreement for the sale and purchase of the land. The plaintiffs assert the written agreement was of no effect because of the failure of a condition precedent. I do not consider it is necessary for me to decide whether the arrangements between the parties are properly characterised as a contract with conditions precedent (which I think it was not) or separate or collateral contracts (which I think more likely).

40. [40]
    In cases where the onus was on the claimant for compensation to prove that the caveator did not have reasonable cause to lodge the caveat, it has been held the claimant had to prove the caveator did not honestly believe on reasonable grounds that it had a caveatable interest: Bedford Properties P/L v Surgo P/L [1981] 1 NSWLR 106. The claim could be repelled by establishing a caveatable interest: Beca Developments at 475.

41. [41]
    A caveat may be lodged by a person claiming an interest in a lot.^[29]“Interest” includes a legal or equitable estate in the land.^[30]

42. [42]
    In Bedford Properties P/L v Surgo P/L [1981] 1 NSWLR 106 at 108, Wootten J. said,

“I think the foundation for reasonable cause must be, not the actual possession of a caveatable interest, but an honest belief based on reasonable grounds that the caveator has such an interest.”

43. [43]
    As I have already noted, this formulation arose and has been applied in cases where the claimant for compensation was required to prove the caveat was lodged without reasonable cause.^[31]It protected a person who honestly and reasonably but wrongly believed he held a caveatable interest.^[32]Yet, such a formulation is consistent with the equitable nature of the interest of a purchaser of land^[33]and provides a useful test for reasonable cause under the present provision. Of course, s. 130 requires proof not of a caveatable interest or of a formula derived from cases decided under different legislation, but that the caveat was lodged with reasonable cause.

44. [44]
    As I have found that Mr Bugg agreed to pay $55,000 as well as the written purchase price, whether as a condition precedent or otherwise, it follows that he must have understood the written agreement did not reflect the true position between the parties. To lodge the caveat was to seek to enforce and take advantage of that agreement. In the circumstances, I am not satisfied he has discharged the onus of proving the caveat was lodged with reasonable cause. I am not satisfied he held an honest belief based on reasonable grounds that he was entitled to lodge a caveat forbidding the registration of any instrument affecting the land.^[34]

45. [45]
    More fundamentally, if the defendant’s interest in the land, being an equitable interest, was “commensurate with the relief which equity would give [him] by way of enforcing the executory contract of sale – usually by a decree of specific performance”^[35], then on the facts as I have found them justice would not require that he be granted specific performance. That is, it is at least doubtful he held and equitable (hence caveatable) interest.

46. [46]
    I have hinted, above, at some of the arguments raised by the parties as to the effect of the discussions between Mr Jiminez and Mr Bugg and the written agreement. Both counsel (and so, I, also) spent much time considering whether, as Mr Fenton, for the defendant, argued:

1. (i)
   evidence of discussions leading to an agreement for the payment of $55,000 is irrelevant and inadmissible, being in breach of the parol evidence rule;^[36]and

2. (ii)
   Mr Jiminez did not have written authority to act as his wife’s agent, so no contract creating an interest in land could have been made at the BP service station, because of the terms of s. 11 Property Law Act 1974; therefore

3. (iii)
   the only contract formed was the written contract signed by all the parties, which must be taken as the embodiment of the parties’ intentions, particularly since Mr Jiminez took the opportunity to insert special conditions but did not add the asserted condition precedent^[37].

4. (iv)
   If there was a collateral agreement for the payment of $55,000, the court may find consideration in the entry into the written contract;

and, as Mr Bowden, for the plaintiffs, argued,

5. (v)
   whether the parol evidence rule did not preclude evidence of the conversations because they proved a condition precedent to a written contract, the failure to perform which invalided the contact ab initio. He referred to Pym v Campbell (1856) 6 El & Bl 370, Technology Licensing Ltd v Climit Pty Ltd [2002] 1 Qd R 566 and Babsari Pty Ltd v Wong [1999] QSC 326.^[38]

47. [47]
    It is obvious that I consider the resolution of this claim does not require the resolution of these arguments. Primarily that is because the issue to be decided is that referred to in s. 130 of the Land Title Act. This is not a claim for damages for breach of contract on the one hand nor for specific performance on the other. However, so far as it may be thought necessary to decide these matters, my view would be as follows.

48. [48]
    The parol evidence rule rests on a presumption that the parties intend a written contract to embody their agreement. Generally speaking, it may be thought that the presumption would be strong in the case of a contract for the sale of land, given the “nature, form and content” of the agreement.^[39]But the contract under consideration was far from usual. It provided for no deposit, no finance clause and contained the special conditions set out in exhibit 2. A person reading it might be surprised by its terms and prompted to ask what else was involved in the transaction. So far as the parties were concerned, on the facts as I have found them, the written agreement did not embody the entire agreement.

49. [49]
    The better view of the agreement for the payment of $55,000 is that it was collateral to the written agreement. It did not create an interest in land. As things transpired, the amount was not paid. Whether the plaintiffs could recover the amount by a claim for breach of contract does not arise for decision on the pleadings.

50. [50]
    It does not follow that, on the facts as I have found them and for the reasons I have given, the written agreement standing alone gives the defendant a caveatable interest or demonstrates the caveat in question was lodged with reasonable cause.

51. [51]
    If, contrary to these conclusions, as the plaintiffs submit, the agreement is to be properly understood as a condition precedent to the written agreement, it seems to me to be a condition precedent to the performance of the written agreement not to its creation.^[40]Mr Jiminez’s evidence was that upon his receipt of the initial payment there would be “an exchange of contracts”.^[41]His understanding was – and it is pleaded that - that the purchase price was $325,000.^[42]$270,000 was to be shown on the contract and $55,000 to be paid in cash immediately.^[43]It might, then, have been that upon the defendant’s failure to pay the $55,000 the plaintiffs could not be made to perform the sale. But it did not render the contract void ab initio, as pleaded in the statement of claim.

52. [52]
    In my view, the parties agreed on the sale of the property for $325,000 to be paid in two parts, only one of them appearing on the contract. That may not have been enforceable^[44]but that is not the question to be decided.

Compensation

53. [53]
    During the trial I granted leave to amend the statement of claim as follows:

24.By reason of the lodgement of the caveat without reasonable cause:-

(a)The Plaintiffs were unable to sell the Lever Court [Ningi] property immediately for the sum of $325,000.00, being its true market value and whereby the Plaintiffs were required to pay interest while the property was sold by the NAB as mortgagee exercising power of sale, such interest being the sum of $9,109.00 and whereby the Plaintiffs were obliged to bear the mortgagee’s costs of sale in the sum of $38,490.00;

(b)The Plaintiffs were required to pay their own legal expenses as a consequence of the caveat in the sum of $5,350.00; and

(c)The Plaintiffs were forced to bear the costs of the NAB in exercising its power of sale of the Beerwah property in the sum of $6433.32.

54. [54]
    The figures come from the evidence of Mr Lee, an accountant. His opinion is based on certain premises, including the assumption that “had the matters that form the basis of this action not occurred” the plaintiffs “would have sold the Ningi property to either Mr Bugg or alternatively another party for $325,000” and the NAB would not have foreclosed on the loans relating to both properties.^[45]

55. [55]
    Mr Jiminez’ evidence included that had not the caveat been lodged he would have contacted local real estate agents and re-advertised the property.^[46]He was firm on the price - $325,000. He considered he would have made a quick sale.^[47]Although objectionable as opinion evidence about the prospects of a quick sale, that remark revealed his state of mind, namely that he would have been slow to accept less.

56. [56]
    There is no evidence of any purchaser who was prepared, but for the lodgement of the caveat, to buy the Ningi house. The opinion of valuers, Eccleston and Fraser, was that the average sale period for housing in the area “has extended out to three to six months. As a result of this we do not consider that a ‘short’ marketing period or the ‘auction process’ are the optimum period or method of sale respectively.”^[48]The valuers considered the Ningi property to be worth $340,000, the range being $320,000 – 360,000.

57. [57]
    Mr Bugg gave uncontradicted evidence that in about November 2005 he was the highest bidder at an auction of the property,^[49]but his $200,000 bid was not accepted by the mortgagee.^[50]It is an agreed fact that on or about 15 February 2006 the NAB sold the Ningi property in its capacity as mortgagee exercising power of sale for $325,000.^[51]

58. [58]
    In the end, the plaintiffs’ case is based on the bald assertion that they would have sold the Ningi property for $325,000 but for the lodgement of the caveat. I am unable to draw that inference. It seems to me that the losses suffered by the plaintiffs arose out of the failure of an ill-fated bargain. I am not satisfied the plaintiffs’ claimed losses were “as a result” of the lodging of the caveat, even if that was done without reasonable cause.

59. [59]
    The plaintiffs argue that, because they could not sell straight away, “the bank moved in”.^[52]This led to the sale of the Beerwah property, the costs of which comprise the third component of loss claimed in the amended paragraph 24. Again, I find it impossible to view this as anything but a consequence of the failure of the sale to Mr Bugg. The financial arrangements available to the plaintiffs came with burdensome fees and high interest rates. The letter of offer, dated 20 June 2005,^[53]provided that the finance would be available upon the fulfilment of certain conditions precedent. These conditions included the provision of a copy of a contract of sale of the Ningi property. The offer was open for 10 days. Thereafter, the loan was to be drawn within 45 days, failing which the letter of offer would lapse. Correspondence between solicitors for the NAB and Mr Hoolihan^[54]indicates the bank had taken steps to enforce its mortgage and seek recovery of possession of the Ningi property by 5 August 2005.

60. [60]
    It may be that the failure of the sale to Mr Bugg left the plaintiffs unable to take “advantage” of the finance offered, with the consequence that the plaintiffs could not restore their position with the NAB which then exercised its rights with respect to the Beerwah property. I am not satisfied that the lodging of the caveat was a cause of this sequence of events.

61. [61]
    The plaintiffs claim an amount thrown away in defending the specific performance proceedings commenced in the Supreme Court by the defendant. The first observation is that those costs resulted from the defendant’s attempt to have the plaintiffs complete the sale of the property at Lever Court. That is, they arose as a result of the plaintiffs’ refusal, whether rightly or wrongly, to complete the contract. These costs were incurred in litigation conducted in another court. Those proceedings went to sleep in December 2005, after an application in the Supreme Court, apparently for default judgment, was dismissed by consent. That was the time and place to seek to recover those costs. The plaintiffs argue the lodging of the caveat was a cause of the costs being incurred. I think the better view is that the caveat was incidental to the proceedings and is not properly to be regarded as having resulted in the costs being thrown away.^[55]

62. [62]
    In summary, I conclude the onus of proving that the caveat was not lodged without reasonable cause falls on the defendant. He has not discharged that onus. But the plaintiffs have not demonstrated that they suffered loss or damage as a result. There will be judgment for the defendant. I will receive written submissions from the parties as to costs and other further orders by 5 August 2011.