Express Loans And Finance v Hunter [2004] NSWSC 142

The Court was asked in an ex parte application to make one or other of these orders: first, an order granting leave to the plaintiff pursuant to section 74O(2)(a) of the Real Property Act 1900 to lodge a caveat over land of which the first defendant is the registered proprietor; alternatively, to make an injunction restraining the Registrar General from registering any unregistered dealing relating to the land.

The plaintiff’s claim arose out of a document called Service Agreement and Irrevocable Authority dated 24 March 2003 between the plaintiff and the first defendant. The short effect was that the first defendant retained the plaintiff to assist her in obtaining a loan within terms specified in the document; the document set out material identifying the loan amount and a number of properties which were the security to be offered for the proposed loan. There are seven such properties and the property here was one of them. The document was difficult to follow.

However there was evidence prima facie that services were in fact performed and the plaintiff located a loan from an intending lender; and did so several times and made the business opportunities available to the first defendant.

The claim to lodge a caveat turned on clause 10 which said:

“I/we authorise Express Loans and Finance to lodge a caveat on the above security property if the fees as agreed are not paid on demand and will sign all documents as required by Express Loans and Finance to facilitate same.”

There is no evidence that any supplementary document was signed. The document did not, internally or elsewhere, in any express terms create or purport to create an interest in land or charge any land with the amount of the plaintiff’s fees, and the view that the document overall complies with the statutory requirement in section 54A of the Conveyancing Act, 1919 for writing turns not on anything expressed in the document, but on implication from its terms overall.

There have been instances where such implications have been made, particularly in the Court of Appeal. Both those decisions turned on the view that, with the aid of implication, the documents there under consideration showed an intention to create an interest in land, that is an equitable interest and a charge over land.
The plaintiff’s counsel argued that the burden confronting the plaintiff at this stage was to show that there was a reasonably arguable case worthy of interlocutory protection to the effect that the document, on its true meaning and effect, creates an interest in land.

Held  no such view was reasonably available. In clear and express terms the agreement authorises lodgement of a caveat; nothing else, not the maintenance of the caveat and not a charge over the land or any other means of enforcement; lodgement simpliciter, nothing else.

There was no supporting indication in the document, of which the plaintiff was the profferor, of any matter which might support the view that compliance with section 54A and creation of an interest in land were intended. It was contended on behalf of the plaintiff that the agreement would be futile and ineffective if it did no more than it literally provided for. This argument was incorrect. An impediment is placed in the way of a registered proprietor if a caveat is lodged, whether or not the caveat is effective, as its lodgement confronts the registered proprietor with problems and difficulties, whether or not it can be removed. The correct understanding of clause 10 was that its purpose was to enable the plaintiff to impede and obstruct the defendant’s path as registered proprietor, without going any further.

There were other aspects of the application which the Court considered against granting immediate interlocutory relief. The caveat proposed would have been the third caveat to be lodged by the plaintiff in support of its supposed interest. Service of the lapsing notice for the first caveat was effected by its being sent by registered post to the address specified in the caveat, which was also at that time the registered office of the plaintiff. The plaintiff’s evidence was that by the time the notice was posted the plaintiff no longer carried on business at its registered office and had some arrangement, to pick up mail from time to time from the persons who were there, which failed.
That is to say, according to the plaintiff’s case, delivery of the notice miscarried because the plaintiff was not available at the address notified in the caveat, that being its registered office. The Court disapproved of this and this was another factor against granting any immediate interlocutory relief.

A further matter against immediate interlocutory relief was that the plaintiff, after the lapse of its first caveat, lodged another caveat without obtaining the leave of the Court and contrary to the provisions of section 74O of the Real Property Act, 1900. The plaintiff abused the caveat system, and this went against the grant of the application.

For the same reasons the Court was unprepared to make any order restraining the Registrar General from taking any action to register an unregistered dealing.

The order was that leave to lodge a caveat and an immediate injunction were refused.

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