Yates v Hutchinson[2022] QDC 54

DISTRICT COURT OF QUEENSLAND

Summary

1. [1]
   Having met in July 2018, and formed a personal relationship by August 2018, the first plaintiff and defendant embarked on a venture to develop two properties with a shed, houses, tourist cabins and walking tracks.
2. [2]
   The properties located at Kamerunga and Speewah were initially owned by the first and second plaintiffs, respectively.  But with a common view to progressing the venture and relieving the plaintiffs of mortgagee pressure, the parties agreed that the properties be sold to the defendant, who then became the sole registered owner and mortgagor.  However, the parties’ intentions are poorly recorded and are subject of significant disputation in this proceeding.  Their diverse understanding of any agreement or arrangement contradicts the land sale contracts and settlement of the sale of the land.  Their venture failed due to the retarded progress of development and parties’ failed relationship.  The Kamerunga property has since been sold, and the Speewah property is burdened by the first plaintiff’s caveat pending resolution of this proceeding.
3. [3]
   The plaintiffs claim for: specific performance of the asserted joint venture agreement; a declaration that the properties were held on trust pursuant to the joint venture agreement to the proportions of contribution of the contracted purchase prices; and damages for breach of the joint venture agreement and unpaid purchase money.  The defendant defends the proceeding and seeks orders for removal of the caveat on the Speewah property, and consequential orders for the removal of the plaintiffs’ goods from the land.
4. [4]
   The determinative issues in the proceeding are:

1. What is the legal nature of the agreement, arrangement or understanding between the parties, if any?
2. Did the plaintiffs’ waiver of payment of part of the purchase price at the time of completion of the land sale contracts give rise to a beneficial interest in the respective properties in favour of the plaintiffs under a constructive and/or resulting and/or implied trust?
3. What is the consequential effect of the arrangements between the parties?

5. [5]
   It seems to me that the venture undertaken by the parties was in the context of a personal relationship and not sufficiently certain or attended by the requisite intention to create legal relations to be enforceable as a joint venture agreement.  However, the parties were bound by the respective land sale contracts and the effect of the plaintiffs’ ‘waiver’ of part of the purchase price being paid at settlement, that is $67,416.39 for the Kamerunga land sale contract, and $68,153.25 for the Speewah land sale contract.  In my view the unpaid purchase price did not give rise to a beneficial interest in the land in favour of the respective plaintiffs in the proportion of the unpaid purchase price.  Nor do I accept the defendant’s assertions that the money was never truly part of the purchase price or otherwise forgiven. 
6. [6]
   But instead, I find that the plaintiffs merely waived the strict time for payment, and the unpaid amounts are simple debts of unpaid purchase prices payable to the plaintiffs.  The debt owing to the first plaintiff is $67,416.39 being the unpaid purchase money for the Kamerunga property sale.  I accept that the defendant has expended about $10,968 on engineering costs, council fees and incidental expenses towards the development on the Speewah land.  Therefore, the debt owing to the second plaintiff is $57,185.25 for the Speewah land sale being the difference between the unpaid purchase money of $68,153.25 and $10,968. 
7. [7]
   Having come to that view, the plaintiffs did not have a requisite interest to lodge a caveat on the property, and the caveat ought be removed.   I note that the defendant has been prevented from dealing with the property as a consequence, but I am not provided with any evidence of any capital loss arising from the delayed disposition of the land, and it is likely that the land has appreciated in value over time.  But the defendant has continued to service the mortgage pending determination of this proceeding, which ought be set off from any amounts found due to the plaintiffs. 
8. [8]
   In addition, the plaintiffs have failed to pay to the defendant $12,100.00 overdue pursuant to the indemnity costs order made on 5 November 2020.  That too should be set off from any amounts found due to the plaintiffs. 
9. [9]
   Each of the parties are entitled to interest on money outstanding from one to the other, which is effectively neutralised by setting off the competing amounts.  Therefore, I will allow interest on the final judgment sums in the plaintiffs’ favour after deducting by way of set off those amounts adjudged in the defendant’s favour.

What is the legal nature of the agreement, arrangement or understanding between the parties, if any?

10. [10]
    The first plaintiff is a qualified electrician and electrical engineer but has been incapacitated to work commercially since March 2014.
11. [11]
    Nevertheless, he was desirous of developing two properties for tourist cabins and walking tracks.  He owned one property at 10 Jagera Close in Kamerunga (being lot 10 on Group Titles Plan 70333, title reference 21453173) which he bought in 2014 for $45,000, and the second plaintiff company, of which he was the sole director and shareholder, owned the other property located at 48 Sanctuary Close in Speewah (being Lot 7 on Survey Plan 146369, title reference 50395192).  Each property was financed, including a bridging loan to allow the second plaintiff company to purchase the Speewah property while using the Kamerunga property as collateral.  The first plaintiff’s circumstances brought significant and increasing financial pressure.  The first and second plaintiffs used the land to store a significant amount of construction material, goods and machinery with a view to building on properties.
12. [12]
    Having met in July 2018, the first plaintiff and defendant had developed a personal relationship by August 2018 and were musing about the first plaintiff’s ideas of developing the properties but faced with growing financial pressure.
13. [13]
    The plaintiffs contend that on or about 22 October 2018 the parties made an enforceable joint venture agreement comprising of oral conversations, written text message and implied terms. 
14. [14]
    The plaintiffs contend that the written part of the agreement comprised the text message sent by the defendant to the first plaintiff on 29 August 2018.  As to the oral part, the plaintiffs contend that in a series of oral conversations during September and October 2018 it was agreed in effect that the plaintiffs would sell the land to the defendant, they would build a shed and home on, and subdivide, the Speewah property at the defendant’s expense, and as “equitable owners” of the land, they will sell the Speewah house block to discharge mortgages and equally share the property, then the ownership of the remaining property will revert to the first plaintiff.  The plaintiffs also rely upon implied terms: that the plaintiffs would forebear enforcing the contracts of sale for the Speewah land and Kamerunga land, respectively (which I deal with below); that the defendant would engage an engineer to develop the Speewah land for the shed and house, and engage the council for development approval; that the first plaintiff would acquire building materials for the shed and house; and the defendant would let the first plaintiff store the material on the Speewah land and Kamerunga land.  While the defendant accepts that there was some sort of agreement in or about September 2018, she disputes its make-up and terms. 
15. [15]
    After a discussion with the defendant’s mortgage broker (whose retainer is unknown), the parties entered into written contracts of sale for each parcel of land.  By two separate contracts dated 14 September 2018, the defendant agreed to buy the Kamerunga land from the first plaintiff for $140,000 and the Speewah land from the second plaintiff for $280,000.  Both contracts have been duly stamped and duty was paid as applicable to those purchase prices.  The contract provided for default interest on late payments at “the Contract Rate applying at the Contract Date published by the Queensland Law Society”.
16. [16]
    There was only one solicitor involved in the transaction.  The solicitor was identified as the plaintiff seller’s solicitor in each contract, while also apparently acting as an unpaid agent for the defendant buyer.  The settlement statement indicates that the solicitor’s professional fees of $1400 for each transaction was met by the relevant plaintiff seller, although the defendant paid separate invoices for search fees and other outlays undertaken by the same solicitor.
17. [17]
    The agency of the solicitor became critical in the proceeding because shortly before settlement, when approached by the solicitor, the first plaintiff apparently agreed in writing to “waive” payment of part of the purchase price for each transaction.  The relevant settlement statements prepared by the solicitor showed a reduction of $67,416.39 for the Kamerunga land sale contract, and $68,153.25 for the Speewah land sale contract.  The first plaintiff deposes that he discussed this with the defendant and was assured that a caveat was not necessary since their relationship was solid, she only had $60,000 and any unpaid purchase moneys would go towards building and subdivision costs of the Speewah land.  The defendant denies any discussion.  In any event, the first plaintiff emailed the solicitor on 22 October 2018 saying that: “Hi Troy, Balance for settlement today I agree with your calculation of figures, and waiving the amount of $135,569.64 so that settlement will proceed.”
18. [18]
    The plaintiffs contend that this was not a variation or forgiveness of any debt, but instead constituted the plaintiffs’ forbearance from enforcing the contract and created an implied trust in favour of the plaintiffs to the extent of the unpaid purchase price in the respective land.  Alternatively, the plaintiffs assert that the unpaid purchase price gave rise to a debt payable by the defendant to the respective plaintiff. 
19. [19]
    The defendant rejects these contentions and argues that the contract price was negotiated for convenience to satisfy financiers and that the deal was always only about $300,000, that she was not a party to any waiver, and no further money was payable under the contract. 
20. [20]
    The contracts for the sale of the land were completed for the reduced purchase price and the defendant became the sole registered owner of the Kamerunga land and the Speewah land. 
21. [21]
    There are competing recriminations between the parties about the lack of progress of development of the land as intended.  The plaintiffs assert that development of the Speewah property was suspended by agreement so that a house could be built on the Kamerunga property instead.  I accept that both parties tried their incompetent best to realise the proposed development envisioned by the first plaintiff, and that both expended significant effort and money to that end.  I accept that the defendant has expended about $10,968 on engineering costs, council fees and incidental expenses towards the development.  This is rejected by the defendant who asserts that the venture failed due to the first plaintiff’s inordinate delay in construction.  The parties’ personal relationship failed in March or April 2019, and on 13 May 2019. The defendant demanded that the first plaintiff remove all construction and other materials from the Speewah land, and disallowed any further development of the land.  The plaintiff relies upon this conduct as being a fundamental breach of the alleged joint venture agreement.
22. [22]
    The first plaintiff lodged caveats to protect his asserted beneficial interest in the land over each parcel of land.  But in the meantime, the defendant had committed to sell the Kamerunga land for $90,000 to a third party without notice, so the first plaintiff agreed to withdraw the caveat on that Kamerunga land to facilitate the sale which settled in about July 2019.  The sale proceeds were applied to the mortgages encumbering both properties.  Incidentally, the first plaintiff asserts that the Kamerunga land was worth $140,000 and was sold at an undervalue, which is not justiciable in this proceeding.
23. [23]
    Courts strive to give certainty to bargains, especially in relation to commercial agreements, by using techniques of construction and implication to render them sufficiently certain.^[1]  The relationship between joint venturers is essentially contractual, and the scope of the joint venture is determined by the scope of their joint venture agreement.^[2] 
24. [24]
    It seems to me that the arrangements between the parties here are far from certain enough to amount to an enforceable joint venture in contract beyond the sale of land transactions by the plaintiffs to the defendant. 
25. [25]
    The plaintiffs contend that the written part of the agreement comprised the text message sent by the defendant to the first plaintiff on 29 August 2018 asking:

“Can I invest in you?  But I have the capacity to get a bank loan and I like your ideas.  We would have to have a really clear plan as to how things would work but it could be good??”

26. [26]
    Whilst not relied upon as forming part of the contract, it is contextual to note the first plaintiff reply text of the same day as follows:

“Well I think that you should think like an investor and fuck me like a lover and just be careful.  You need to have control and own the assets and maybe have a clear exit strategy just incase (sic) and timeline to objectives.  I cannot think of anything more exciting in this would to see and share objectives like these with a partner like you. Maybe don’t rush and see what you think after camping.”

27. [27]
    Again, whilst not relied upon, but contextually relevant, the defendant replied:

“Ok, sounds good.  Think about how you would want it to look?”

28. [28]
    Even reading the defendant’s text message of 29 August 2018 in the context of the later texts, the subsequent conversations, and implied terms – I am unable to discern any thread of an enforceable joint venture.
29. [29]
    As to the oral part, the first plaintiff testified, consistent with the pleading, that in a series of oral conversations during September and October 2018 the parties agreed that:

    1. (a)
       The plaintiffs would sell the land to the defendant;
    2. (b)
       The couple would build a shed and home on the Speewah land, and later, subject to council’s approval, the development would be split over two subdivided lots – one being the shed block and the other being the house block;
    3. (c)
       The defendant would pay for the outlays and expenses of constructing the shed and house and the subdivision.
    4. (d)
       The first and/or the second plaintiffs would be “equitable owners” of the Speewah land and the Kamerunga land as tenants in common in equal shares;
    5. (e)
       The developed Speewah house block would then be sold to discharge the securities over both the Speewah land and the Kamerunga land;
    6. (f)
       The couple would then equally share in any surplus net profits from the sale of the house block on that part of subdivided Speewah land;
    7. (g)
       The defendant would then transfer to the first plaintiff the Speewah shed block, and the Kamerunga land.
30. [30]
    While the defendant accepts that there was some sort of agreement in or about September 2018, she disputes its make-up and terms.  Instead, her testimony affirmed her contentions that:

    1. (a)
       The defendant would own both the Speewah land and Kamerunga land;
    2. (b)
       The first plaintiff would build a house made of shipping containers on the land; 
    3. (c)
       The first plaintiff would be an “owner builder” in respect of the Kamerunga land and the defendant would be an “owner builder” in respect of, and allow the first plaintiff to build the house on, the Speewah land;
    4. (d)
       The defendant would fund other expenses, such as engineering plans, soil testing, labour hire, etc;
    5. (e)
       The first plaintiff would complete construction of the “houses” on the land between six to 12 months from September 2019; and
    6. (f)
       Once completed the Speewah land will be subdivided and the house block will be sold.
31. [31]
    There is common ground between the parties that: the first and second plaintiffs, respectively would sell the Kamerunga and Speewah properties to the defendant; the first plaintiff would build a shed and liveable house on the Speewah property; the Speewah property would be subdivided (with Council approval) to create one parcel containing the house and a second parcel containing the shed; the defendant would pay for the development and subdivision expenses; the subdivided Speewah house block would be sold to pay out the mortgages over both the Speewah and Kamerunga properties; and the surplus net profit will be shared equally.
32. [32]
    Otherwise, the first plaintiff (for himself and as agent of the second plaintiff) and the defendant are intolerably disparate in their accounts of the arrangements about the overall venture, except the initial land sale transactions.  I am unable to discern with sufficient certainty any agreement about the beneficial ownership reverting to the plaintiffs, and/or the timing of the development, necessary approvals, and the completion of the building work.  Save for the land sale contracts, the parties proceeded more in the nature of a domestic arrangement without the requisite intent to create certain contractual relations. 
33. [33]
    The plaintiffs also rely upon implied terms: that the plaintiffs would forebear enforcing the contracts of sale for the Speewah land and Kamerunga land, respectively (which I deal with below); that the defendant would engage an engineer for development of the Speewah land for the shed and house, and engage the Council for development approval; that the first plaintiff would acquire building materials for the shed and house; and the defendant would let the first plaintiff store the material on the Speewah land and Kamerunga land.
34. [34]
    A term may be implied in a contract by reason of the circumstances in the context of which the contract is made, or by statute. Terms can be implied in the former case where:

    1. (a)
       the term is reasonable and equitable;
    2. (b)
       the term is necessary to give business efficacy to the contract, so that no term will be implied if the contract is effective without it; and
    3. (c)
       the term is so obvious that “it goes without saying”; the term is capable of clear expression; the term must not contradict any express term of the contract.
35. [35]
    As best I can glean, the implications propounded by the plaintiffs arise from subsequent conduct and conversations in the execution and completion of the land sale contracts.
36. [36]
    The circumstances of the negotiation and payment of the purchase prices for the respective properties involve unusual conduct of both a mortgage broker and a solicitor in the transactions. 
37. [37]
    Each party disavows retainment of the mortgage broker, yet he purported to negotiate the respective purchase prices directly with the first plaintiff, as if he was the defendant’s agent.  The parties ultimately entered into two separate land sale contracts dated 14 September 2018 for the purchase price so negotiated. That is, the defendant agreed to buy the Kamerunga land from the first plaintiff for $140,000 and the Speewah land from the second plaintiff for $280,000.  Yet the defendant maintains that the contract prices were merely a product of convenience to satisfy financiers and that she was always only willing and able to pay $300,000 for the properties.
38. [38]
    There was only one solicitor involved in the land sale transactions.  The solicitor was identified as the plaintiff seller’s solicitor in each contract, but he also purportedly acted as an unpaid agent for the defendant buyer.  Shortly before the date of settlement, the solicitor approached and negotiated directly with the first plaintiff to “waive” payment of some of the purchase price otherwise due on completion of each sale contract.  The first plaintiff testified that he contacted and spoke to the defendant about the need for a caveat and her applying those amounts towards the development costs.  He deposes that the defendant assured him that a caveat was not necessary since their relationship was solid, that she only had $60,000, and that any unpaid purchase moneys would go towards building and subdivision costs of the Speewah land.  The defendant denies any discussion.  The plaintiff subsequently agreed to “waive” payment of $67,416.39 for the Kamerunga land sale contract, and $68,153.25 for the Speewah land sale contract.  Like the mortgage broker, the solicitor purports to negotiate as if he was the defendant’s agent.  But whilst the defendant acted on the reduced balance purchase prices, she denies any conversation with the defendant about the amounts and disavows the agency or retainer of the solicitor to act on her behalf.  
39. [39]
    The plaintiffs rely upon their forbearance from enforcing the full payment of the purchase prices under the contract, and the defendant’s application of those amounts towards the development costs, as supporting the contended implied terms.  In the alternative, the plaintiffs contend that the circumstances gave rise to an implied trust, or a debt, which I deal with below.
40. [40]
    Suffice it to say, at this juncture, I am not satisfied that the implied terms propounded by the plaintiffs are reasonable and equitable, or necessary, to give business efficacy to “joint venture”, or that they are so obvious that “it goes without saying”.  The terms contended by the plaintiff are not capable of clear expression, and they contradict the express terms of the written contracts as to the amount and timing of the purchase price.
41. [41]
    Further, the plaintiffs’ case is further flawed and unenforceable for want of formality. 
42. [42]
    There are some classes of contract which must be attended by some formality before they are enforceable.  Relevantly here, to the extent of that, the parties purported to agree to the disposition of the Speewah and Kamerunga properties, and agree that the first plaintiff would carry out building contracts – those contracts must be in writing.  The separate sale of land contracts for the disposition of the interest in the parcels of land were written and signed by the party to be sued.^[3]  However, that cannot be said about the parties’ agreement for the first plaintiff to carry out building work on the Speewah property or the Kamerunga property.  Those oral agreements for building work necessarily fail.^[4]
43. [43]
    In these confused, and confusing circumstances, I am bound to conclude that there is no enforceable joint venture agreement between the parties, and the plaintiffs’ claim for specific performance of the alleged joint venture fails.

Did the first plaintiff’s waiver of payment of part of the purchase prices at the time of completion of the land sale contracts give rise to a beneficial interest in the respective properties in favour of the plaintiffs under a constructive and/or resulting and/or implied trust?

44. [44]
    The plaintiffs contend that this was not a variation or forgiveness of any debt, but instead constituted the plaintiffs’ forbearance from enforcing the contract and created an implied by trust in favour of the plaintiffs to the extent of the unpaid purchase price in the respective land. 
45. [45]
    The defendant also rejects this contention, and argues that the contract price was negotiated for convenience to satisfy financiers and that the deal was always only about $300,000, that she was not a party to any waiver, and no further money was payable under the contract. 
46. [46]
    Putting aside the pre-contract discussion between the plaintiffs and the mortgage broker, it is clear that by two separate contracts dated 14 September 2018, the defendant agreed to buy the Kamerunga land from the first plaintiff for $140,000 and the Speewah land from the second plaintiff for $280,000.  Both contracts have been duly stamped, and duty was paid as applicable to those purchase prices.  Notwithstanding, the machinations of the solicitor’s agency and the defendant’s denial of any reduction and redirection of some of the purchase price, it is tolerably clear that the transactions were completed with payments of the reduced balance purchase prices.  After the first plaintiff was contacted by the solicitor shortly before settlement, he (for himself and the second plaintiff company) emailed the solicitor on 22 October 2018 saying: “Hi Troy, Balance for settlement today I agree with your calculation of figures, and waiving the amount of $135,569.64 so that settlement will proceed.”  The relevant settlement statements prepared by the solicitor showed a reduction of $67,416.39 for the Kamerunga land sale contract, and $68,153.25 for the Speewah land sale contract.  The transactions were completed accordingly.
47. [47]
    The plaintiffs contend that this was not a variation or forgiveness of any debt, but instead constituted the plaintiffs’ forbearance from enforcing the contract and created an implied trust in favour of the plaintiffs to the extent of the unpaid purchase price in the respective land. 
48. [48]
    It seems that the plaintiffs’ pleading of an implied trust is referring to a resulting trust (as more commonly described), which is one that arises by operation of law.  The circumstances in which such a trust arises may include when, on the purchase of property the person who supplies some or all of the purchase monies does not become the legal owner, then the latter holds it on a resulting trust for that person.
49. [49]
    In Calverly v Green (1984) 155 CLR 242 at 246, Gibbs CJ explained it this way:

“... where a person purchases property in the name of another or in the name of himself and another ... it is presumed that the purchaser did not intend the other person to take beneficially. In the absence of evidence to rebut that presumption, there arises a resulting trust in favour of the purchaser. Similarly, if the purchase money is provided by two or more persons jointly and the property is put into the name of one only, there is ... presumed to be a resulting trust in favour of the other or others.”

50. [50]
    So, the outcome depends on the intention of the plaintiffs (manifested by the first plaintiff), and on that intention alone.  Unless the relationship between the plaintiffs and the defendant is such as to give rise to a presumption that the plaintiffs intended to make a gift of the beneficial interest, the law presumes that the plaintiffs did not intend the defendant to take such an interest.  In the absence of evidence to rebut that presumption, that is, evidence of the plaintiffs’ real intention, a resulting trust arises in favour of the plaintiffs.^[5]  Incidentally, the provisions of s 11 of the Property Law Act 1974 (Qld) requiring trusts of real property to be evidenced in writing do not apply to resulting trusts.^[6]
51. [51]
    The question as to whether a resulting trust arises and, if so, the extent of any beneficial interest, is determined by the circumstances and intention at the time when the property was purchased.  When common intention is relevant, as here, it will not ordinarily be found in some uncommunicated “state of mind”, but will be inferred from what the parties did or said.^[7]  The evidence from which a court may draw an inference about the intention of the parties will include their acts and statements before or at the time of the purchase.  This evidence is admissible for or against the party who did the act or made the statement.  Any subsequent statement is admissible only as an admission against interest.^[8]
52. [52]
    When considering in what proportion the purchase price was paid by two or more purchasers, regard is limited to the provision of the purchase monies, and the repayment of money borrowed to make the purchase does not amount to payment of the price.^[9]  The issue in this case relates to the proportion of each amount “waived” by the plaintiffs in relation to the total contract price for each property.
53. [53]
    Whether or not a trust results, will depend upon the appropriate presumption arising from the circumstances.  Where a person might advance money to buy a property, but it is put in the name of another, in the absence of any other circumstance or evidence, the law presumes that the person proportionally holds the beneficial interest in the property on resulting trust for the advancer.  This presumption can be rebutted by evidence that the plaintiffs intended to transfer the whole of the interest to the defendant, or gift that part by virtue of their personal relationship.  The traditional position is that the presumption of intention to advance does not apply to couples who live together but are not married.^[10]  However, the presumption should “be adjusted to reflect modern concepts of the equality in status and obligations of a wife vis-a-vis a husband”,^[11] which is even more pertinent in light of current social standards.
54. [54]
    In this case, it seems to me that the presumption of advancement is rebutted by clear evidence that the plaintiffs did not intend to acquire some beneficial interest in the properties.  The first plaintiff testified that he contacted and spoke to the defendant and agreed (although denied by the defendant) in effect that any unpaid purchase monies would go towards building and subdivision costs of the Speewah land.  Such was his intent.  The application of the presumption is also inconsistent with the terms of the contract which requires for the payment of the balance purchase price at completion and provides for default interest on late payments at “the Contract Rate applying at the Contract Date published by the Queensland Law Society”.  These circumstances contraindicate any requisite intention to create a trust.
55. [55]
    For these reasons, I conclude that the unpaid purchase prices did not create an implied or resulting trust to give rise to any beneficial interest in the land in favour of the respective plaintiffs in the proportion of the unpaid purchase price.  Nor do I accept the defendant’s assertions that the money was never truly part of the purchase price or otherwise forgiven.  But instead, I find that the plaintiffs merely waived the strict time for payment, and the unpaid amounts are simple debts of unpaid purchase prices payable to the plaintiffs.  The debt owing to the first plaintiff is $67,416.39 being the unpaid purchase money for the Kamerunga property sale.  I accept that the defendant has expended about $10,968 on engineering costs, Council fees and incidental expenses towards the development on the Speewah land.  Therefore, the debt owing to the second plaintiff is $57,185.25 for the Speewah land sale, being the difference between the unpaid purchase money of $68,153.25 and $10,968

What is the consequential effect of the arrangements between the parties?

56. [56]
    Having come to the view above, it is clear that the plaintiffs did not have a requisite interest to lodge a caveat on the property, and the caveat ought be removed.  I note that the defendant has been prevented from dealing with the property as a consequence, but I am not provided with any evidence of any capital loss arising from the delayed disposition of the land, and it is likely that the land has appreciated in value over time. 
57. [57]
    But the defendant has continued to service the mortgage pending determination of this proceeding.  In addition, the plaintiffs have failed to pay to the defendant $12,100.00 overdue pursuant to the indemnity costs order made on 5 November 2020.  These matters ought be reconciled in consequence of this proceeding.
58. [58]
    By virtue of s 68(1)(a) of the District Court of Queensland Act 1967 (Qld), this Court has power to hear and determine the defendant’s personal claim, which has been found to be a debt, within the court’s monetary jurisdiction of $750,000.  The court is also empowered pursuant to s 68(1)(b)(xii) to restrain, whether by injunction or otherwise, any actual, threatened or apprehended trespass or nuisance to the Speewah property, where the value of that land does not exceed the monetary limit, as here.
59. [59]
    By operation of s 69(1) this court has, for the purposes of exercising the jurisdiction conferred by s 68(1) as here, all the powers and authorities of the Supreme Court, including the powers and authorities conferred on the Supreme Court by an Act, and may in any proceeding in like manner and to like extent:

    1. (a)
       grant such relief or remedy; and
    2. (b)
       make any order, including an order for attachment or committal in consequence of disobedience to an order; and
    3. (c)
       give effect to every ground of defence or matter of set-off whether equitable or legal;

as may and ought be done in like cases by a judge of the Supreme Court.

60. [60]
    And, where this Court is seized of primary jurisdiction, it is empowered to grant relief, relevantly here: by way of a declaration of rights of the parties; and by way of injunction.

Absence of any caveatable interest in the properties.

61. [61]
    The first plaintiff lodged caveats to protect his asserted beneficial interest in the land over each parcel of land, which he seeks to propound in this proceeding.
62. [62]
    By caveat dealing No. 719433818 lodged by the first plaintiff on 30 May 2019, he claimed an interest in the properties (then owned by the defendant) as “beneficial owner of an estate in fee simple under a constructive and/or resulting and/or implied trust” arising from monetary and non-monetary contributions made towards the acquisition, conservation and improvement of the subject property pursuant to a resulting and/or constructive trust and/or implied trust”. 
63. [63]
    I have concluded that the unpaid purchase prices did not give rise to a beneficial interest in the land in favour of the respective plaintiffs as claimed.  But instead, gave rise to simple debts payable to the plaintiffs in money, or in kind, in furtherance of the development of the land.  Having come to that view, the plaintiffs did not have a requisite interest to lodge a caveat on the property, and the caveat ought be removed.  
64. [64]
    Since the plaintiffs’ respective claims have been found and determined on the basis of being a liquidated debt, it must follow that the nature of the second plaintiff’s interest asserted in the caveat does not entitle it to prevent registration of a dealing with the land.   In any event, the first plaintiff has failed to demonstrate any caveatable interest in the Speewah property owed by the defendant and formerly owned by the second plaintiff.

Removal of Caveat from the Speewah Property?

65. [65]
    It seems to me that this Court does have power to order the removal of the caveat over the Speewah land under the auspices of the Land Title Act 1994 (Qld), and the incidental powers of the court in the exercise of its primary jurisdiction.
66. [66]
    Pursuant to s. 128(1)(b) & (c) of the Land Title Act 1994 (Qld), the Registrar may cancel a caveat upon receipt of a Form 14 General Request to Cancel Caveat if the Registrar is satisfied, inter alia, that the interest claimed by the second plaintiff has been otherwise satisfied by determination of this proceeding, and the nature of the second plaintiff’s interest does not entitle it to prevent registration of a dealing with the land. 
67. [67]
    Pursuant to s. 127 of the Land Title Act 1994 or s. 389H of the Land Act 1994, a caveatee may apply at any time to the Supreme Court for an order that a caveat be removed.  The Supreme Court may make the order whether or not the caveator has been served with the application and may make the order on the terms it considers appropriate.
68. [68]
    I will order that the plaintiffs will take all necessary steps at their own cost to remove the caveat encumbering the Speewah property within 30 days of this judgment, unless otherwise agreed in writing.

Compensation for loss because of the caveat.

69. [69]
    The defendant has been prevented from dealing with the property as a consequence of the caveat.
70. [70]
    There is no evidence of any capital loss arising from the delayed disposition of the land; indeed, it is likely that the land has appreciated in value over time.  However, unlike the Kamerunga property where the caveat was released to facilitate the impending sale, the Speewah property has been paralysed by the caveat since registration on 30 May 2019.  Consequently, the defendant has been forced to service the mortgage on the Speewah property since that time at considerable cost.
71. [71]
    Pursuant to s. 130(1) of the Land Title Act 1994, a caveator under a caveat lodged or continued without reasonable cause must compensate anyone else who suffers loss or damage as a result.  Subsection 130(3) of that Act provides for the assumption that a caveat has been lodged or continued without reasonable cause until the caveator proves that there was reasonable cause. 
72. [72]
    The first plaintiff caveator, has not proved there was reasonable cause founding the lodgement or continuation of the caveat.  The first plaintiff has failed to demonstrate any beneficial interest in the Speewah property, which was then owned by the defendant.  Even if the waiver of purchase money payable by the defendant on settlement for the Speewah property enlivened some beneficial interest, it is not in favour of the first plaintiff who was not the seller.  That property was formerly owned by the second plaintiff. 
73. [73]
    It seems to me that the defendant is entitled to compensation (to be borne equally by both plaintiffs) equating to the payments of mortgage interest in relation to the Speewah property as loss suffered by the defendant as a result of the caveat lodged without reasonable cause.

Removal of the plaintiff’s chattels from the Speewah Property

74. [74]
    The defendant defends the proceeding and seeks orders for removal of the caveat on the Speewah property, and consequential orders for the removal of the plaintiffs’ goods from the land.
75. [75]
    The first and second plaintiffs used the land to accumulate and store a significant amount of construction material, goods, and machinery with a view to building on properties.  There has been a significant period of time for the plaintiffs to remove the personal property from the land, but the plaintiffs have failed to do so after repeated requests by the defendant.
76. [76]
    By virtue of s 68(1)(xii) of the District Court of Queensland Act 1967 (Qld), this Court is also empowered to restrain, whether by injunction or otherwise, any actual, threatened or apprehended trespass or nuisance to land, where the value of that land does not exceed the monetary limit, or, in lieu of or in addition to such an injunction, damages not exceeding the monetary limit.
77. [77]
    I will order that the plaintiffs will take all necessary steps at their own cost to remove their personal property from the land within 90 days of this judgment, unless otherwise agreed in writing.  In the event that the defendant does not remove the personal property within the time adjudged or agreed (if any), the defendant will be at liberty to seek enforcement orders to dispose of the personal property and the costs of such disposal ought be deducted from the amounts adjudged.

Outstanding costs pursuant to order made on 5 November 2020.

78. [78]
    By paragraph 3 of my Order made on 5 November 2020 in related proceedings No. 107/19, in the wake allowing the plaintiffs application to set aside the settlement deed for want to the first plaintiff’s capacity at the mediation, I ordered that the plaintiffs pay the defendant’s costs of and incidental to the mediation, including the settlement deed  of 16 December 2020 that were thrown away, to be assessed on the indemnity basis.
79. [79]
    The defendant sought payment of those costs in the amount of $12,100 as evidenced by her solicitors tax invoices, which, in my view are reasonable and necessary and are properly fixed as the assessed indemnity costs under the order.  Whilst, I accept that the plaintiffs’ attempt to make payment by electronic funds transfer failed due to an incorrect account number, they have since failed or refused to make any further payment in satisfaction of the order.
80. [80]
    In the circumstances, the outstanding indemnity costs of $12,100, payable by the plaintiffs to the defendant pursuant to the Order out be offset in equal proportions from the amounts adjudged in favour of the first and second plaintiffs.

Interest on the amounts adjudged

81. [81]
    It seems to me that the parties will be entitled to interest on the on the respective amounts adjudged in their favour.
82. [82]
    The plaintiffs are entitled to interest on the respective amounts adjudged as being money payable under the contract at settlement on 22 October 2018 but not paid for reasons discussed above.  In that regard, clause 9.9 of each contracts of sale provided that:

9.9   Interest on Late Payments

(1) The Buyer must pay interest at the Default Rate:

(a)  on any amount payable under this contract which is not paid when due; and

(b)  On any judgement for money payable under this contract.

(2)  Interest continues to accrue:

(a) under clause 9.9(1)(a), form the date it is due until paid;

(b) under clause 9.9(1)(b), form the date of judgment until paid.

(3) Any amount payable under clause 9.9(1)(a) in respect of a period prior to settlement must be paid by the Buyer at settlement.  If this contract is terminated or any amount remains unpaid after settlement, interest continues to accrue.

(4) Nothing in this clause affects any other rights of the Seller under this Contract.

83. [83]
    Since there was no default interest rate figure inserted in the reference schedule of the contract, the applicable default rate is “the Contract Rate applying at the Contract Date published by the Queensland Law Society”.  The published default interest rates for the relevant period are:

    1. (a)
       9.30% effective from 1 October 2018
    2. (b)
       9.18% effective from 1 June 2019
    3. (c)
       9.07% effective from 1 July 2019
    4. (d)
       8.96% effective from 1 October 2019
    5. (e)
       9.00% effective from 1 November 2019
    6. (f)
       8.96 % effective from 1 December 2019
    7. (g)
       6.22% effective from 1 July 2020
    8. (h)
       6.24% effective from 1 August 2020
    9. (i)
       6.11% effective from 1 November 2020
    10. (j)
        6.08% effective from 1 December 2020
    11. (k)
        6.05% effective from 1 January 2021
    12. (l)
        6.03% effective from 1 February 2021
    13. (m)
        6.01% effective from 1 March 2021
84. [84]
    The defendant is also entitled to interest on amounts adjudged in her favour, and which ought be set off against any amount payable by the defendant to the plaintiffs as determined in this judgment. 
85. [85]
    Section 58 of the Civil Proceedings Act 2011 (Qld) empowers the court to order that there be included in the amount for which judgment is given interest at the rate the court considers appropriate for all or part of the amount and for all or part of the period between the date when the cause of action arose and the date of judgment.  Section 59 provides for interest after judgment, which is not relevant here since the amounts will be wholly set off against the moneys adjudged in the plaintiff’s favour.
86. [86]
    The appropriate interest rate I consider appropriate for those amounts adjudged in the defendant’s favour ought to equate to the interest rates applicable under the contract, which is effectively neutralised by setting off the competing amounts.
87. [87]
    As a result, I will allow interest on the final judgment sums in the plaintiffs’ favour after deducting by way of set off those amounts adjudged in the defendant’s favour.

Conclusion

88. [88]
    For these reasons, I will give judgment to the respective plaintiffs against the defendant and make consequential orders as follows:

1. Judgment is granted to the first plaintiff against the defendant as follows:
   1. (a)
      The judgment amount calculated as - $67,416.39 less $6,050 pursuant to paragraph 3 of the Order made on 5 November 2020, and less half of the interest paid by the defendant from 30 May 2019 to service the mortgage over the land at 48 Sanctuary Close in Speewah being Lot 7 on Survey Plan 146369, title reference 50395192;

and

2. (b)
   Interest on the judgment amount calculated at the Contract Rates published by the Queensland Law Society from 22 October 2018.

2. Judgment is granted to the second plaintiff against the defendant as follows:
   1. (a)
      The judgment amount calculated as - $57,185.25 less $6,050 pursuant to paragraph 3 of the Order made on 5 November 2020, and less half of the interest paid by the defendant from 30 May 2019 to service the mortgage over the land at 48 Sanctuary Close in Speewah being Lot 7 on Survey Plan 146369, title reference 50395192 ;

and

2. (b)
   Interest on the judgment amount calculated at the Contract Rates published by the Queensland Law Society from 22 October 2018.

3. The defendant will pay the first and second plaintiff’s costs of and incidental to the proceeding to be assessed on the standard basis.
4. The plaintiffs will take all necessary steps at their own cost to remove the caveat encumbering the Speewah property within 30 days of this judgment, unless the parties agree in writing to a longer time.
5. The plaintiffs will take all necessary steps at their own cost to remove their personal property from the Speewah property within 90 days of this judgment, unless the parties agree in writing to a longer time, and the defendant will allow access to the property as necessary for such removal.
6. Each party has liberty to apply to the court, in respect of these orders, by filing an application and supporting affidavit(s) and serving the other parties at least 5 business days before the date set for hearing of the application by the Court Registry.

Judge DP Morzone QC