Scott, A.G. & Ors v. Butterfield, S.I. & Ors [1994] FCA 1008

JUDGMENT No. ..../, 00% 74

CATCHWORDS INTERLOCUTORY INJUNCTION - injunction restraining registered proprietors from dealing with property - whether caveat

satisfactory to protect asserted interests of the applicant

ALAN GEOFFREY SCOTT as trustee of the bankrupt estate of IAN PATRICK BUTTERFIELD v BUTTERFIELD & THE REGISTRAR-GENERAL

BRANSON J. ADELAIDE FED 9 DECEMBER 1994 "AusTRAET OF PRINCIPAL

REGISTRY

IN THE FEDERAL COURT OF AUSTRALIA SOUTH AUSTRALTA DISTRICT REGISTRY

GENERAL DIVISION

No. SG 92 of 1994

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BETWEEN: ALAN GEOFFREY ScoTr as trustee of the bankrupt estate of TAN PATRICK BUTTERFIELD Applicant

- and - SHAWN IAN BUTTERFIELD

First Respondent - and - TONI BUTTERFIELD

Second Respondent - and -

THE REGISTRAR-~GENERAL

Third Respondent

EX TEMPORE REASONS FOR JUDGMENT RE INTERLOCUTORY RELIEF

CORAM: Branson J. PLACE: Adelaide . DATE: 9 December 1994

«

The applicant in this matter is the trustee of the bankrupt estate of Ian Patrick Butterfield who I will refer to hereafter as the bankrupt. The applicant has instituted proceedings in this court seeking a declaration that certain property situated at Middleton in this State is property that belonged to the bankrupt and Jean Marie Butterfield as

tenants-in-common at the commencement of their respective

-2- bankruptcies and is property divisible as to one-half amongst the creditors of the bankrupt. Certain further or alternative declarations are also sought as well as consequential orders. In the same proceedings the applicant seeks interlocutory relief restraining the first and second respondents, who are the registered proprietors of the Middleton property, from dealing with it. That is, the applicant seeks to maintain the

status quo with respect to that property.

Dr Baxter, the counsel for the first and second respondents, concedes that there is a serious issue to be tried as to the applicant's entitlement to the Middleton property. He has argued, however, that the asserted interests of the applicant in the property could be satisfactorily protected by the lodging of an appropriate caveat with the Registrar-General. Consequently, he contends, the interlocutory injunction sought should not be granted. The authorities recognise that the ordinary jurisdiction of the courts to protect rights of property are not excluded by the caveat provisions of real property legislation. I refer to Public Trustee v Murray (1922) 22 SR NSW 555 and Halaga Developments Pty Ltd v Grimie (1986) 5 NSWLR 740, particularly at page 747. Plainly, however, the availability of an alternative remedy is a matter which I should take into account in considering whether or not an interlocutory injunction should, in all of the