Starling v Miller [2023] NSWSC 855 (20 July 2023)

Last Updated: 24 July 2023

Supreme Court New South Wales

Case Name:	Starling v Miller
Medium Neutral Citation:	[2023] NSWSC 855
Hearing Date(s):	20 July 2023
Date of Orders:	20 July 2023
Decision Date:	20 July 2023
Jurisdiction:	Equity - Duty List
Before:	Hammerschlag CJ in Eq
Decision:	(1) Pursuant to s 74O of the Real Property Act 1900 (NSW), the plaintiff has leave to lodge a further caveat on the title to the property in Folio Identifier 203/15376 in the following terms: ESTATE OR INTEREST CLAIMED Charge By virtue of: Orders of the Federal Circuit and Family Court of Australia Dated: 29/11/2021, 03/12/2021, 10/02/2022 Details Supporting The Claim: Pursuant to orders of the Federal Circuit and Family Court of Australia made on 3 December 2021 (File Number BRC4359/2019), the caveator is at liberty to lodge a caveat over the property to secure payment of the settlement sum of $1.5 million owed to the caveator by the registered proprietor pursuant to an Order of the Federal Circuit and Family Court of Australia made on 29 November 2021 and the registered proprietor is obliged to consent to the lodgement. (2) Upon the plaintiff, through counsel, having proffered the usual undertaking as to damages, the defendant is restrained, until further order, from procuring the issue of any lapsing notice with respect to the caveat in order (1) (if lodged). (3) The defendant is to pay 75% of the plaintiff’s costs. (4) The Summons is otherwise dismissed. (5) These orders are to be entered forthwith.
Catchwords:	LAND LAW — caveat — Real Property Act 1900 (NSW) ss 74K, 74O — application by the plaintiff to extend the operation of a caveat lodged on the defendant’s property — where matrimonial settlement orders made by the Federal Circuit and Family Court of Australia (the Family Court) awarded the property to the defendant and made provision for payment by her to the plaintiff of a settlement sum of $1.5 million to be raised by sale of the property if it was not paid by a particular date — where the Family Court made orders that the plaintiff be at liberty to lodge a caveat over the property and in the event that order was not sufficient to permit the lodgement of a caveat, the parties will do everything necessary to lodge a consent caveat — whether the orders give rise to a caveatable interest — HELD — the orders give rise to a caveatable interest — form of caveat lodged insupportable — caveat not extended but leave given to the plaintiff to lodge a caveat reflecting the caveatable interest found by the Court — injunction ordered restraining the defendant until further order from taking steps to procure the lapsing of the new caveat
Legislation Cited:	Real Property Act 1900 (NSW)
Cases Cited:	Coleman v Bone (1996) 9 BPR 16,235 Powell v Stone [2014] NSWSC 574 Troncone v Aliperti (1994) 6 BPR 13,291
Category:	Principal judgment
Parties:	Darren Starling (Plaintiff) Lisa Miller (Defendant)
Representation:	Counsel: D Robertson (Plaintiff) A Elizabeth (Defendant) Solicitors: McInnes Wilson Lawyers (Plaintiff) Toltz Lawyers (Defendant)
File Number(s):	2023/00223539

EX TEMPORE JUDGMENT (REVISED)

1. By Summons filed on 13 July 2023, the plaintiff moves the Court for an order extending the operation^[1] of a caveat (the Caveat) lodged by him on the defendant’s property at 230 Whale Beach Road, Whale Beach NSW, Folio Identifier 203/15376 (the Property). In the alternative, the Summons seeks leave to lodge a further caveat on the basis that he has a caveatable interest in the Property pursuant to orders of the Federal Circuit and Family Court of Australia (the Family Court), which orders are referred to below. The plaintiff also seeks an injunction restraining the defendant from taking steps to procure the lapsing of the Caveat or any further caveat.
2. The parties are estranged spouses.
3. On 29 November 2021, in settlement of the parties’ matrimonial dispute and by consent, the Family Court made orders on a final basis (the Settlement Orders), the presently relevant aspects of which are that the defendant was awarded ownership of the Property and was to pay to the plaintiff, by way of payment into his solicitor’s trust account, a settlement sum of $1.5 million by 31 May 2022. By all accounts, the amount has not been paid.
4. On 3 December 2021, the Family Court made the following further orders (amended on 10 February 2022) (the Caveat Orders):

1. The Husband be at liberty to lodge a caveat over the Whale Beach Road property and be permitted to provide a copy of these Orders to the New South Wales Titles Registry and in the event this order is not sufficient authority to permit the lodgement of a caveat, the parties will do all things necessary to lodge a consent caveat and in the event the Wife fails to sign the necessary form, the Registrar of the Federal Circuit and Family Court of Australia be appointed pursuant to section 106A to sign on behalf of the Wife.

2. In the event the Wife is required to refinance the existing loan or further encumber the Whale Beach Road property for the sole purpose of paying the Settlement Sum to the Husband pursuant to these Orders, the parties will do all things necessary and sign all documents required to withdraw the caveat over the Whale Beach Road property, within 7 days of the following occurring:

(a) This order act as irrevocable authority for the Husband to communicate with the proposed lender;
(b) The lender confirms, in writing with the Husband’s solicitor that the amount to be refinanced is for the sole purpose of paying funds into the Husband’s solicitors trust account in compliance with final property orders and that irrevocable authority had been provided by the Wife to the financier that such funds are to be paid to the Husband’s solicitors Trust Account; and
(c) The Wife’s application for refinance is to be for the sole purpose of paying the Husband the Settlement Sum.

5. Purportedly acting pursuant to order 1 of the Caveat Orders, the plaintiff lodged the Caveat on the Property. The “Estate or Interest Claimed” in the Caveat is:

Estate in Fee Simple

By virtue of: Court Order

Dated: 03/12/2021

Details Supporting The Claim: Per Federal Court Orders No. (P)BRC4359/2019

6. The defendant procured the issuing of a lapsing notice and the Caveat will, unless extended, apparently lapse at the end of today.
7. Mr D Robertson of counsel appeared for the plaintiff. Ms A Elizabeth of counsel appeared for the defendant.
8. The defendant opposes the grant of any relief to the plaintiff. Ms Elizabeth argued that:
   • (1) the Caveat is unsustainable because neither the Settlement Orders nor the Caveat Orders (or the combination) gives rise to an equitable interest in the property in the hands of the plaintiff. She cited Brereton J (as his Honour then was) in Powell v Stone [2014] NSWSC 574 (“Powell”) to the effect that a right to have another person’s land sold and to have a portion of the proceeds of sale does not give rise to an equitable interest in the Property.
   • (2) even if an equitable interest arises by the operation of the Caveat Orders, it is not the interest described in the caveat.
   • (3) if the Caveat is extended, it should be extended only until the plaintiff obtains a decree for specific performance of the defendant’s obligations.
   • (4) the plaintiff had not proffered the usual undertaking as to damages.
   • (5) the balance of convenience favours the defendant (or at least does not favour the plaintiff) because the defendant wishes to refinance the property and is being hampered by the Caveat.
   • (6) the only course open to the plaintiff is to further agitate his claim in the Family Court.
9. Mr Robertson correctly accepted that the description of the interest claimed in the Caveat goes beyond any interest the plaintiff could have.
10. The plaintiff now proffers the usual undertaking as to damages, which I will take (subject to confirmation from counsel) to be given with respect to the orders I propose to make below.
11. In Troncone v Aliperti (1994) 6 BPR 13,291 at 13,292-3, Mahoney JA (with whom Priestley and Meagher JJA agreed) said that if a registered proprietor of land covenants by deed that until a loan be repaid, he will not sell or deal with the land, that covenant would create, in favour of the covenantee, an interest in the land to the extent that an injunction would go to restrain the covenantor from dealing with the land in a manner inconsistent with the covenant.
12. Here, the defendant is bound by Family Court orders which require her to consent to the lodgement of a caveat, plainly to protect the plaintiff’s position with respect to the Property, which is to be the source of funds for the payment of the settlement sum. The Settlement Orders were by consent. Order 3 provides that the defendant is to pay the settlement sum by 31 May 2022, which date has passed. Order 3 further provides that if the settlement sum is not paid on time, the Property is to be sold. This, coupled with the requirement for the defendant to give her consent to the lodgement of a caveat, is sufficient to create a caveatable interest in the Property. These characteristics distinguish this case from Powell.
13. I observe that order 1 of the Caveat Orders has two components, the first conferring authority (so far as it can be conferred) on the plaintiff to lodge a caveat and the second, as a form of further assurance, a consent by the defendant for the plaintiff to do so.
14. Added to what I have said earlier, in Coleman v Bone (1996) 9 BPR 16,235 at 16,239, McLelland CJ in Eq said:

So far as the “caveat’’ is concerned, it has been held by the Court of Appeal (in Troncone v Aliperti (1994) 6 BPR 13,291; NSW ConvR 55-703) that if in a contract between A and B, A grants B authority to lodge a caveat in respect of property of A, that grant carries with it by implication such estate or interest in the property as is necessary to enable that authority to be exercised. Where the authority to lodge a caveat is given in connection with an obligation by A to pay money to B, and there is no sufficient indication to the contrary, the implication is that the estate or interest granted is an equitable charge to secure payment to B of that money: Troncone at BPR 13,293–4; ConvR 60,020 per Meagher JA.

15. Here, far from there being a significant implication to the contrary, every implication (not least of all the defendant’s own consent for the lodgement of the caveat) is that the Property is charged to secure payment of the settlement sum.
16. I do not consider that operation of the caveat contemplated by the Caveat Orders is properly to be made, pending some further claim to be made by the plaintiff or further agitation in the Family Court. The Settlement Orders provide for that claim. Once the defendant discharges her obligation to pay the settlement sum, the Caveat may be removed. The Caveat is in aid of the enforcement of an existing judgment.
17. In my opinion, the balance of convenience favours the plaintiff where the defendant has not paid the settlement sum and it is to be raised from sale of the Property.
18. Moreover, I do not consider that it is fairly open to the defendant to argue that the balance of convenience does not favour the plaintiff, but favours her, in circumstances where order 2 of the Caveat Orders embodies an agreement that the Property can be refinanced for the sole purpose of paying the settlement sum to the plaintiff, and it is plain that she wishes to refinance the Property for some other purpose.
19. She baulks at the suggestion that the Court be assured that the refinancing will be the means of paying the settlement sum.
20. The appropriate order in the present case is to decline to extend the caveat, but order under s 74O of the Real Property Act 1900 (NSW) ^[2] that the plaintiff have leave to lodge a further caveat on the title to the property in Folio Identifier 203/15376.
21. The Court made the following orders:
    • (1) Pursuant to s 74O of the Real Property Act 1900 (NSW), the plaintiff has leave to lodge a further caveat on the title to the property in Folio Identifier 203/15376 in the following terms:

ESTATE OR INTEREST CLAIMED
Charge
By virtue of: Orders of the Federal Circuit and Family Court of Australia
Dated: 29/11/2021, 03/12/2021, 10/02/2022
Details Supporting The Claim: Pursuant to orders of the Federal Circuit and Family Court of Australia made on 3 December 2021 (File Number BRC4359/2019), the caveator is at liberty to lodge a caveat over the property to secure payment of the settlement sum of $1.5 million owed to the caveator by the registered proprietor pursuant to an Order of the Federal Circuit and Family Court of Australia made on 29 November 2021 and the registered proprietor is obliged to consent to the lodgement.
Note: The PEXA categories of “Estate or Interest Claimed” are:
1. Charge
2. Covenant Charge
3. Easement
4. Estate in Fee Simple
5. Estate in Remainder
6. Forestry Right
7. Lease
8. Lien
9. Life Estate
10. Mortgage
11. Positive Covenant for Maintenance and Repair
12. Profit a Prendre
13. Public Positive Covenant
14. Registered Proprietor
15. Certificate of title
16. Restrictive Covenant
17. Statutory Charge

• (2) Upon the plaintiff, through counsel, having proffered the usual undertaking as to damages, the defendant is restrained, until further order, from procuring the issue of any lapsing notice with respect to the caveat in order (1) (if lodged).
• (3) The defendant is to pay 75% of the plaintiff’s costs.
• (4) The Summons is otherwise dismissed.
• (5) These orders are to be entered forthwith.

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^[1] Pursuant to the Real Property Act 1900 (NSW) s 74K.
^[2] Real Property Act 1900 (NSW) s 74O(2)(a) provides: 74O Restrictions on lodgement of further caveats if earlier caveat lapses or is withdrawn ... (2) A further caveat to which this section refers has no effect unless— (a) the Supreme Court has made an order giving leave for the lodgement of the further caveat and the order or an office copy of the order accompanies the further caveat when it is lodged with the Registrar-General, or ...