Global Capital Industries Pty Ltd v Dela Property Developments Pty Ltd
[2005] QSC 217
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- Unreported Judgment
- Global Capital Industries Pty Ltd v Dela Property Developments Pty Ltd[2005] QSC 217
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Global Capital Industries Pty Ltd v Dela Property Developments Pty Ltd[2005] QSC 217
Reported at [2006] 1 Qd R 501
Global Capital Industries Pty Ltd v Dela Property Developments Pty Ltd[2005] QSC 217
Reported at [2006] 1 Qd R 501
SUPREME COURT OF QUEENSLAND
CIVIL JURISDICTION
McMURDO J
No BS5890 of 2005
GLOBAL CAPITAL INDUSTRIES PTY LTD ACN 109 026 851 | Applicant |
and | |
DELA PROPERTY DEVELOPMENTS PTY LTD ACN 112 905 290 and SEANA GROUP PTY LTD ACN 073 967 861 | First Respondent
Second Respondent |
BRISBANE
DATE 26/07/2005
JUDGMENT
HIS HONOUR: This is an application to remove three caveats: two lodged by the first respondent, which I will call Dela, and the third lodged by the second respondent, which I will call Seana.
Dela's caveats are lodged respectively over two pieces of land of which the applicant is the registered owner. The interests claimed in each of the Dela caveats is that under "An option to Purchase". Specifically the caveat describes the interest in each case in these terms, "an equitable interest in a one quarter share in fees simple as grantee under an option to buy contained in a heads of agreement".
The applicant and Dela are in fact parties to three agreements, each of which is described as a Heads of Agreement. There is an agreement in relation to Lot 1 on RP 135854, a further agreement, in relation to the other property, the subject of Dela's caveats, which is Lot 6 on SP 157206. And yet a further Heads of Agreement in relation to another piece of land, which I shall call Lot 5, of which the applicant is not yet the registered owner.
As to Lot 5, the applicant's proposal would appear to be to acquire Lot 5 and to develop that Lot together with Lots 1 and 6, that is the Lots subject to the caveats, for effectively the one development. Each of the Heads of Agreement is in identical terms save for the specification of the piece of land which is involved, and of the price to be paid in the event that Dela exercise the option to purchase which was conferred by it.
So, for example, the Heads of Agreement in relation to Lot 6 recites that Global is the owner of Lot 6 which is then defined for the purposes of that agreement as "the land". It further recites that "Global will be undertaking the development of the land for residential and/or resort use", which is then defined for the purposes of the agreement as "the project". It further recites that Dela and its directors have been approached by Global and its director, Mr Donnelly, to participate and assist in the development by taking an equity in the land and the project.
By Clause 1, Global grants Dela "an option to purchase a one quarter share of the land and of the project for (in the case of Lot 6) $1,500,000." The option may be exercised by written notice within 12 months from the date of the Heads of Agreement, which in each case, is 9 June 2005. It provides that all decisions regarding the financing, development and marketing of the project must be by joint agreement of Dela and Global, and notwithstanding that the option may not have been exercised; but that this provision would cease to operate from a date which is 12 months from the date of the agreement (assuming that Dela has not by then exercised the option).
By Clause 5, in each case, it is provided that Global should not without the prior consent of Dela increase beyond its existing level the total amount of its indebtedness to third parties secured by any form of security over the land and/or the project.
Clause 6 requires the parties to sign, execute and deliver all deeds, documents, instruments and acts reasonably required to carry out and get full effect to this Heads of Agreements.
The project in each case then is defined by reference to a development of the land as that term is defined within the heads of agreement. And the land is specified only as the particular lot, whether it be lot 6 or lot 1 or lot 5, rather than the three lots. Each agreement, on its face, appears to be distinct from the others so that the performance of one is not dependent upon the performance of another. And each appears to grant a distinct option to purchase to Dela, to purchase one lot absent the exercise of the option to purchase another lot or lots.
Nevertheless, at present there does seem to be a substantial prospect that upon any final hearing of this dispute, it would be established that each of the agreements was dependent upon the other. As I have said, there is some evidence which at least strongly suggests that the intention of both sides was to pursue a development of the three lots rather than three distinct developments lot by lot.
The significance of that issue is that Global, the applicant, submits that the relevant rights granted to Dela are personal rights because Global is not yet the owner of lot 5. The submission has some force but ultimately I am satisfied that there is a serious question to be tried to the effect that Dela has under the heads of agreement for lots 1 and 6, which are the subject of its caveats, a caveatable interest as the holder of an option to purchase that land.
The applicant's case is also to the effect that the parties had an agreement, or at least some assumption or expectation which perhaps might found an estoppel, to the effect that the caveats would not be lodged. To explain that, the Dela caveats, and indeed the Seana caveat, were lodged with the written consent of the applicant. That does not preclude an order for the removal of the caveats and nor does it obviate the necessity to investigate whether there is a caveatable interest. But the applicant's case is that notwithstanding that it signed the form of consent, it agreed at the same time with each of the respondents that the caveat would not be lodged or at least there was some relevant assumption or expectation to that effect. I accept that there is some serious question to be tried in that respect but of course that does not deny the existence of a serious case to be tried in favour of the caveator.
A further difficulty in the heads of agreement is from the very general specification of what constitutes "the project". The heads of agreement do not describe with any precision what is involved in that proposal. Again, it might be that upon a final hearing the agreement could be shown to have the requisite certainty but that is a distinct weakness in the Dela case.
Yet a further difficulty is in seeing that ultimately Dela would be given the remedy of specific performance in the event that it exercises the option to purchase. It is an option to purchase not only the land but the so called project. In effect it is an agreement for a joint venture between the parties if and when Dela exercises the option. The difficulty in the grant of specific performance of such agreement is clear.
The fact that specific performance might not be available is not fatal to the existence of a caveatable interest: re Henderson's caveat [1998] 1 QdR 632. Nevertheless it is, at least in the present case, of particular importance so far as considerations of the balance of convenience are concerned.
The applicant's predicament is that it wishes to obtain further finance or to refinance with a view to pursuing its proposed development. There is evidence that in its dealings with the proposed financier it has been unable at least thus far to obtain the proposed finance of just over $1,000,000 whilst any of these three caveats remains in place.
The applicant's circumstances provide a substantial case so far as balance of convenience considerations are concerned.
Having regard to the difficulties in Dela's case, to which I have referred, and in particular to the unlikelihood of any grant of specific performance, I am persuaded that the balance of convenience favours the removal of the Dela caveats and they will be ordered to be removed.
I turn then to the Seana caveat. Dela and Seana are companies under the same control. They are effectively controlled by Mr Soltysik. The Seana caveat is lodged over Lots 1 and 6. The interest which is claimed is specified in the caveat in these terms "An equitable estate or interest as second mortgagee of an estate in fee simple". The applicant has granted a mortgage to Seana dated 9 July 2005 over Lots 1 and 6. It is an "all moneys" mortgage.
Seana has been working in something of a consultant's role for the applicant in the pursuit of this development. Seana claims that it is already owed something of the order of $470,000 by the applicant. The applicant, at least within this hearing, has disputed its liability for any of that although the basis for that dispute seems somewhat weak as I will discuss. The mortgage is yet to be lodged for registration.
Again the applicant says that it was agreed, or at least understood, that this caveat would not be lodged, whilst the applicant pursued some further finance. And again the existence of that agreement or understanding is disputed by the caveator. Yet again this caveat was lodged together with a form of general consent to it signed on behalf of the applicant.
For reasons I have already given in relation to Dela's caveats, there is an issue to be tried as to whether there was an agreement or understanding in relation to not lodging the caveat; but that does not preclude a finding today that the caveator - in this case, Seana - does have a caveatable interest.
The applicant further argues that the caveat is bad, and incurably bad, for a matter of form which is in its specification of the caveator's interest in the terms that I have already set out. It argues, by reference to considerable authority at least in New South Wales, that a caveator is required to state not only the interest which is being claimed, but the nature and quantum of the estate or interest which is claimed. And it is submitted, again with the support of some authority, that in the context of an equitable mortgagee's caveat that requires the caveat itself to specify the amount of the debt secured by the mortgage.
Particular reliance for this argument was placed upon the judgment of Holland J in Kerabee Park Pty Ltd v. Daly [1978] 2 NSWLR 222 at 230 to 233. The caveats there were ordered to be removed for other reasons but his Honour saw it as appropriate to consider the further objections to them that they were bad in form for failing to set the nature and quantum of the estate or interest which was claimed.
The existence of a rule, at least in New South Wales, that required the quantum of the estate or interest to be specified was traced by his Honour to the cases cited at the top of page 231 which are Re Spencer (1904) 4 SR NSW 471, Palmer v. Wylie (1906) 23 WN NSW 90, Re Jones (1935) 35 SR NSW 560 and Re Fairlie (1959) 76 WN NSW 475. His Honour also referred to a judgment of Sir Nigel Bowen, sitting as the Chief Justice in Equity in the Supreme Court of New South Wales, in Eastern v. Ardizzone which was unreported but which he annexed to his judgment.
Those authorities had long established in New South Wales a rule of practice that the so-called quantum of the estate or interest was to be specified in a caveat. And that was in the context of statutes which were not materially different from section 121 of the Land Title Act 1994 of Queensland, in requiring the caveat to state the interest claimed by the caveator.
That line of authority had found within those words some implicit requirement that not only the interest itself be specified but also the so-called nature and quantum of the interest.
Holland J noted the strong criticism which had been made of that line of authority but thought that he should follow it. The New South Wales statute is now in different terms. One particularly strong criticism of that line of authority was by Joske J in Gasiunas v Meinhold (1964) 6 FLR 182 at 185-186 where his Honour said:
"The New South Wales practice stems from a statute that has been superseded, from a head note which is erroneous, from a judicial assertion which quite evidently is unfounded since it is evident that it goes far beyond the judgments which it relies on and from an alleged acceptance by the legal profession which is treated as justification for departing from the ordinary meaning of the statutory language."
An occasion arose in the High Court in Leros Pty Ltd v Terara Pty Ltd and Another (1991) 174 CLR 407 for a review of these cases. They were cited in argument but not in the judgments. Nevertheless the judgments are plainly inconsistent with this line of cases. Leros came from Western Australia and, of course, care must be taken to see that the relevant statute there, is substantially the same as section 121 of the Queensland Act. But in my view, there is no significant difference. The relevant Western Australian provision considered in Leros is set out at page 415 of 174 CLR. It is a requirement that the caveator "specify the estate or interest which is claimed". It was submitted for the applicant that the Western Australian statute is indeed different because of the terms of section 137 of that Act which allowed caveats to be lodged which permitted particular dealings to be registered subject to the caveator's interest.
In my view, however, that doesn't make for any significant difference for present purposes. The relevant requirement, as I have said, was that the caveat specify the estate or interest claimed and that requirement is no different from that which had been considered in New South Wales and in turn from that in section 121(2)(f) of the Queensland Act.
The caveat in Leros was a mortgagee's caveat. One objection made to it was that it did not state the amount of the security. That objection was dismissed in the joint judgment of Mason CJ, Dawson and McHugh JJ at 422 to 423. In particular at 423 their Honours said:
"Two objections are made to the sufficiency of the description of the interest claimed in the caveat that the caveat doesn't state the amount of the security and that it does not state the term of the sub demise, however, in our view, a statement of the amount of the debt is not required as an element in the requisite description of the caveator's interest."
The judgment is, in my view, quite inconsistent with an acceptance of the line of authority in New South Wales. In separate judgments Deane J and Gaudron J agreed with the joint judgment in this respect.
It was submitted that nevertheless the New South Wales practice has been followed both by courts and practitioners in Queensland. Ultimately three cases were relied upon by the applicant for that submission.
The first was Re Powell's Caveat (1966) QWN 9. In that case Douglas J did say that it was "well settled that in caveats against dealings with land the quantum of the estate must be specified" and cited Re Jones and In Re Fairlie, two of the cases which, as I have mentioned, were cited in Kerabee.
However, Powell's caveat was not an equitable mortgagee's caveat. Whilst the case does provide authority for the more general proposition that the quantum of the estate must be specified, it is not authority for the proposition that this requires an equitable mortgagee's caveat to state the amount of the debt secured by the mortgage.
The next of the Queensland cases relied upon is the judgment of McPherson J in re Moore's caveat [1985] 1 QdR 310. In my view, that provides no support for a requirement that the quantum of the estate or interest be specified. McPherson J did make some reference to that proposition and to the New South Wales authority in support of it. But it was unnecessary for him to express a view as to whether it was correct, at least in Queensland, and as I read his Honour's judgment, he did not do so. At page 311 he said, "There is a good deal of reported authority to the effect that a caveat that fails to state the quantum of the estate or interest claimed by the caveator is bad and must be removed. Some criticism has been levelled against them as decisions, and I notice that Professor Whalan, the Torrens system in Australia at 235, is on record as saying that he agrees with that criticism. However, this and some of the decided cases referred to are not instances where the quantum of the interest claimed is insufficiently stated in the caveat. It is closer to the line of cases in which the prohibition upon the registration of instruments that is claimed in the caveat is wider than is necessary to protect the interest in respect of which the caveat has been lodged."
As McPherson J then noted, re Powell's caveat was a case of that kind and was decided upon that basis: which is that the prohibition claimed by the caveat was wider than was necessary to protect the caveator's interest.
The third of the Queensland cases relied upon is the judgment of White J in Chettle v. Brown (1993) 2 QdR 604. That was not an equitable mortgagee's caveat. The claim which was made was by a person claiming as a partner an interest in what was said to be partnership land. The particular submission made in the challenge to that caveat, which is relevant to the present point, appears at the foot of page 605 where her Honour noted that, "It was further submitted that there is a singular lack of particularity about the contribution alleged to the purchase of the land and the agreement itself."
Her Honour then said, "The essentials to be set out in a caveat are the estate or interest claimed and the quantum thereof and how it is claimed. See Kerabee Park v. Daley and re Moore's caveat."
As I have said, I do not read the judgment in re Moore's caveat as supporting that proposition. Nevertheless and importantly, White J then added, "I do not accept that the amount of the monetary contribution needs to be set out in the caveat - that is for the pleadings - and whilst a date for the agreement is desirable, because the contribution is said to be the purchase price, it is not essential. I do not consider that the caveat fails as in form for that reason."
So whilst Chettle v. Brown provides support for the more general proposition that the quantum of the estate or interest needs to be specified, the case provides no support for the proposition that an equitable mortgagee's caveat is bad by a failure to specify the debt which is claimed to be secured.
I am not persuaded that the New South Wales line of authority, as it was, which is relied upon by the applicant, represents the law in Queensland. The requirement for the specification of the so-called nature and extent of an estate or interest is not at all apparent from the terms of the statute, which require the caveat to state the interest claimed by the caveator. To hold otherwise would, in my view, be inconsistent with the judgment of the High Court in Leros.
There is no authority from Queensland for the particular proposition that an equitable mortgagee's caveat must state the debt which is secured. The practicality of such requirement, or the lack of practicality, should be obvious, and the utility of such a requirement is doubtful. Assuming that a mortgagee could reliably specify an amount as the amount secured at the time the caveat is lodged, that information would provide no reliable assurance to someone looking at the caveat as to the debt owed at a later time. It could be well more or well less than that. In my conclusion, the particular objection to the Seana caveat that it is bad in form must be dismissed.
The amounts claimed by Seana, as I have mentioned, have been disputed at least within this hearing as to every dollar and cent. That, however, is inconsistent with the evidence, in which there are several instances of invoices from Seana to the applicant which bear the signature of the applicant's Mr Donnelly, together with a tick and the notation "Okay".
This evidence strongly indicates that the applicant is indebted to Seana for at least the sums claimed by those invoices. In some cases they are amounts which Seana has paid and for which it seeks reimbursement. In other cases, they are claims for what Seana says is the reasonable value of its services.
The particular strength of Seana's claim, at least in relation to those invoices which bear those initials of Mr Donnelly, is an important consideration so far as the balance of convenience is concerned.
It is not the only consideration, of course, and the applicant is likely to be better off in pursuing further finance without these caveats than with them. That is undoubtedly why it has applied for their removal.
The applicant has proposed that the Seana caveat could be removed upon payment to it of $400,000. It may turn out that this is as much as Seana is entitled to, and perhaps more than it is entitled to; nevertheless there is also a substantial prospect that Seana will be found to be owed at least what it claims, which is something of the order of $470,000. In addition, there are other entitlements of Seana under its agreement with the applicant, which are in turn secured by the equitable mortgage for which Seana says it should have the continuing protection of its mortgage, and in turn, its mortgagee's caveat.
As I have mentioned, the caveat in the present case was, in fact, lodged with a form of consent of the registered owner. The effect of that consent in the case of an equitable mortgagee's caveat might be the subject of some debate, although there was no debate in the present case. It appears that the practice of the Registrar in Queensland is to accept an equitable mortgagee's caveat which is lodged with the consent of the registered owner, as if it had not been lodged with that consent, so that it becomes a lapsing caveat in terms of section 126 of the Act. Section 122 provides that a caveat may be lodged by any of the persons specified in subsection (1) including of course, "a person claiming an interest in a lot". But subsection (2) provides that a caveat may only be lodged by an equitable mortgagee if it is a caveat to which section 126 applies. Section 126(1) provides that section 126 does not apply to a caveat if it is lodged with the consent of the registered owner. There was no argument in this case to the effect that an equitable mortgagee's caveat, which is lodged with the owner's consent, is bad and must be removed. It would be a curious position if an equitable mortgagee's caveat in that circumstance provided no protection, whereas one to which the owner had not consented could be a good one. Recognising that, as I have said, the Registrar's practice, it seems, is to treat such a caveat as a lapsing caveat.
In my conclusion, the balance of convenience does favour Seana. It has demonstrated a particularly strong basis for at least most of the debt which it claims. Indisputably, it has a mortgage, and although there is an issue as to whether it was to lodge or not lodge its caveat, it is sufficient to say that it has some real prospect, at least, of overcoming that part of the applicant's case.
The application to remove the second respondent's caveat is refused. The remaining question is one of costs on which I will hear the parties.
...
HIS HONOUR: As to costs the applicant seeks its costs against Dela because it has succeeded against Dela. The caveats lodged by Dela will be ordered to be removed.
The applicant submits that the costs between it and Seana should be reserved because there's been no final determination of the rights and obligations between those parties. But that applies also of course to the case between the applicant and Dela. Ultimately the applicant has succeeded against one respondent but not the other because of different circumstances going to the balance of convenience, affected by the relative strength of the apparent case by Dela as against the apparent case to be made by Seana.
The respondents have the same legal representation. As I mentioned already they are controlled by the same person and the dealings between the applicant and the respondents effectively involve the same circumstances. There is nothing apparently to distinguish the respective financial positions of Dela and Seana.
An order which might be appropriate is one in which the costs of each of these applications - for there are, in effect, two of them - should follow the event. My judgment finally disposes the originating application and an appropriate order could be that the applicant has its costs against Dela because it has succeeded against it but it pays Seana's costs because it has failed against it.
I am concerned by that because it seems to me to have the potential for yet further costs in a dispute between the parties over matters of costs and arguments as to how much was put into one application as against the other. The better outcome, and one which I hope will tend to promote whatever prospect still remains for resolution of this entire dispute, is for no order as to costs to be made in either case. In my conclusion that should be the result.
The orders will be therefore that the first respondent's caveats will be ordered to be removed, there will be no order as to costs and the originating application is otherwise dismissed.
...
HIS HONOUR: The order would record that, according to the usual basis, it would be upon the second respondent's giving the usual undertaking as to damages.