New South Wales Supreme Court CITATION : Maryska v Mason [2007] NSWSC 169 HEARING DATE(S) : 02/03/07 JUDGMENT OF : Gzell J EX TEMPORE JUDGMENT DATE : 2 March 2007 DECISION : Leave to lodge a fresh caveat excluding from prohibition the recording of the mortgage in the Register. CATCHWORDS : CONVEYANCING - Land Titles under the Torrens System - Caveats against Dealings - Equitable life interest based on proprietary estoppel alleged - Whether construction cost arising under serious question to be tried - Whether balance of convenience favours continuation of caveat - Defendant wishing to refinance - Plaintiff not averse to clearing title to allow new mortgage to be registered CASES CITED : Sullivan v Sullivan [2006] NSWCA 312 PARTIES : Robyne Carlyle Maryska - Plaintiff Scot Gregory Mason - Defendant FILE NUMBER(S) : SC 1665/07 COUNSEL : Mr R Wilson/ Mr N Eastman Mr R Lee SOLICITORS : John Simpson & Co Solicitors & Attorneys Sylvia Liddle & Associates IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION GZELL J FRIDAY 2 MARCH 2007 1665/07 ROBYNE CARLYLE MARYSKA v SCOT GREGORY MASON EX TEMPORE JUDGMENT 1 Before the Court is an application for the extension of a caveat lodged on land. The land was bought by the defendant's ex wife who allowed the mother-in-law to reside in the property. The property was transferred to the defendant in 2001 in the course of property settlement proceedings in the Family Court. 2 The caveatable interest which is claimed is as follows: "EQUITABLE LIFE INTEREST created in mid 1997 between the Caveator and Kylie Mason (the predecessor in title to the registered proprietor) which the current registered proprietor at the time the property was conveyed to him took with notice of the Caveator's life interest and accordingly took the title with notice of that prior equity." 3 While the interest is based upon oral conversations, the plaintiff's claim is that a constructive trust exists with respect to the life interest based upon a proprietary estoppel (Sullivan v Sullivan [2006] NSWCA 312). 4 It is submitted in opposition to the application that there is no equitable life interest, that such an interest could not arise as a result of two conversations, and that the matter was not mentioned in the Family Court proceedings. It was first raised in proceedings before the Consumer Trader and Tenancy Tribunal, the decision of which was subsequently held by the Supreme Court to be invalid on the basis that the Tribunal lacked jurisdiction. 5 The defendant financed a loan for one year by a registered mortgage over the property. The defendant wishes to re-finance and will require title clear of the caveat for that purpose. The plaintiff is not averse to the continued caveat, accepting the re-financing transaction. The defendant proffers an undertaking in place of the caveat not to further encumber the property beyond the mortgage under the re-financing proposal. The plaintiff says that is an insufficient and inferior form of security to the existence of the caveat because the caveat is notice to the world at large of a claim by the plaintiff. It was submitted that vendors of chattels, nowadays, may require a charge over all property and a caveat forms the basis of notice to any such vendor of the existence of a claim to an interest in the property. 6 If the extension of the caveat can be so framed as to except the re-financing proposal, I am of the view that it should be extended. There is a serious issue to be tried. The defendant has, through his counsel, indicated that a pleading will be lodged on his behalf seeking by way of cross claim an order for possession. In these proceedings the issue whether there is a constructive trust will be argued. 7 In my view, upon the plaintiff by her counsel giving to the court the usual undertaking as to damages, the balance of convenience favours the continuation of the caveat subject to the reservation I have indicated, or leave to lodge a fresh caveat excluding from prohibition the recording in the Register of the proposed mortgage arising under the re-financing proposal. I direct the parties to bring in short minutes reflecting my reasons. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.