Moon v Wyniard [2006] NSWSC 451

New South Wales Supreme Court

CITATION : Moon v Wyniard [2006] NSWSC 451

HEARING DATE(S) : 01/05/06 JUDGMENT OF : Gzell J

EX TEMPORE JUDGMENT DATE : 05/01/2006

DECISION : Order extending caveat until further order.

CATCHWORDS : CONVEYANCING - Land Titles under the Torrens System - Caveats against Dealings - Application to extend caveat - Contract for sale of land in name of daughter of plaintiffs as purchaser - Name of purchaser altered by secretary in defendants' solicitors' office to parents - Subsequent execution of document by defendants confirming they were prepared to settle sale to parents - No settlement - Defendants enter into new contract for sale to another party who lodges a caveat - Plaintiffs' caveat lodged subsequently - Whether an arguable case of authorisation or ratification

LEGISLATION CITED : Real Property Act 1900

J & H Just (Holdings) Pty Ltd v Bank of New South Wales (1971) 125 CLR 546 CASES CITED : Breskvar v Wall (1971) 126 CLR 376 Jones v Dunkel (1959) 101 CLR 298 Bray v F Hoffman-La Roche Ltd (2002) 118 FCR 1

Richard Moon - 1st Plaintiff PARTIES : Rhonda Moon - 2nd Plaintiff Jane Wyniard - 1st Defendant Terry McMillan - 2nd Defendant

FILE NUMBER(S) : SC 2458/06

COUNSEL : Mr S M McGrath - Plaintiff Mr T Maltz - 1st Defendant

SOLICITORS : Hannaford Cox Connellan & McFarland Solicitors The Law Co Pty Ltd

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

GZELL J

MONDAY 1 MAY 2006

2458/06 RICHARD MOON & ANOR v JANE WYNIARD & ANOR EX TEMPORE JUDGMENT 1 A contract for sale of property from the defendants, Jane Wyniard and Terry McMillan, to Renee Moon was signed on 29 September 2005. On 13 October 2005, part payment of the deposit in the amount of $2,000 was made. 2 At some time prior to 22 November 2005, an alteration was made to the contract, substituting the name of the plaintiffs, Richard and Rhonda Moon for that of their daughter, Renee Moon. The evidence is that the alteration was made by a secretary in the office of the solicitors for Ms Wyniard and Mr McMillan at the instance of the Moons. When Ms Wyniard returned from a trip to New Zealand on that date she became aware of the substitution. 3 A document was executed on 8 December 2005, in which Ms Wyniard and Mr McMillan confirmed that they were prepared to settle the sale to Mr and Mrs Moon. That document was subsequently destroyed by Ms Wyniard in the presence of Mr Moon but a copy of the document is in evidence. 4 Settlement did not take place, as proposed, on 8 December 2005. There was a change of solicitors acting for Ms Wyniard and Mr McMillan and a second contract between them and a new purchaser was signed on 9 March 2006, soon after which a caveat was lodged on behalf of the new purchasers. 5 The application before the court is to extend a caveat lodged by Mr and Mrs Moon. That caveat was not lodged until 16 March 2006. I am informed that the solicitors had instructions to lodge the caveat at an earlier stage but failed to do so. 6 It was submitted on behalf of Ms Wyniard and Mr McMillan that Mr and Mrs Moon did not have a caveatable interest because the contract of sale of the property was altered after Ms Wynyard's signature, and by a person who lacked actual or ostensible authority. 7 In my view it is arguable that the secretary acting in the way she did indicated that she had ostensible authority to make the alteration on behalf of the defendants. That is a question that appears to me to be arguable and an application to extend the caveat is not the proper occasion for the determination of an issue such as that. 8 There is authority for the proposition that delay in lodging a caveat does not of itself cause an equity to be deferred (J & H Just (Holdings) Pty Ltd v Bank of New South Wales (1971) 125 CLR 546. See, also, Breskvar v Wall (1971) 126 CLR 376). 9 No evidence was called by Mr and Mrs Moon and I was invited to draw adverse inferences in terms of Jones v Dunkel (1959) 101 CLR 298. While such inferences may be drawn in interlocutory proceedings (Bray v F Hoffman-La Roche Ltd (2002) 118 FCR 1 at 41), I do not intend to do so on this occasion. It seems to me that there are arguments raised on behalf of Mr and Mrs Moon with respect to ratification that demonstrate an arguable position for the purposes of the Real Property Act 1900, s 74K. 10 It was submitted that the balance of convenience lies in favour of Ms Wyniard and Mr McMillan. The continuation of the caveat is causing them immediate financial prejudice and Ms Wyniard is in life shortening ill-health. On the other hand, Mr and Mrs Moon's investment in the property is largely financial. 11 Nonetheless, it seems to be that the balance of convenience is in favour of Mr and Mrs Moon. If they succeed in their argument as to authorisation and ratification, they are entitled to specific performance of the contract for sale. That would be frustrated if the caveat is not extended and the second contract is allowed to settle. 12 In those circumstances I propose to extend the caveat in terms of the summons, provided an undertaking as to damages is given on behalf of Mr and Mrs Moon. From the material that has been filed on behalf of Ms Wyniard and Mr McMillan, it appears that an undertaking as to damages by Mr and Mrs Moon has value. I note that the usual undertaking is given on behalf of Mr and Mrs Moon by their counsel. 13 In my view costs should follow the event. Therefore, I make an order extending the caveat in terms of par 1 of the summons. I order the defendants to pay the plaintiffs' costs. I stand the matter over before the Registrar at 9.30 am on Monday 15 May 2006.