Booy v Peters [2014] NSWSC 1858

Supreme Court New South Wales

Medium Neutral Citation: Booy v Peters [2014] NSWSC 1858 Hearing dates: 19 December 2014 Decision date: 19 December 2014 Jurisdiction: Equity Division - Duty List Before: Stevenson J Decision: Interlocutory application dismissed Catchwords: REAL PROPERTY - caveats - extension of caveat - alleged representation by defendant that she would transfer portion of property - whether gave rise to a proprietary estoppel - whether balance of convenience warranted extension of caveat -whether transfer of disputed land likely at final hearing - likely minimum equity Legislation Cited: Real Property Act 1900 Cases Cited: Commonwealth v Verwayen (1990) 170 CLR 394 Category: Interlocutory applications Parties: Susan Windsor Booy (First Plaintiff) Carl Leopold Booy (Second Plaintiff) Marion Priscilla Peters (Defendant) Representation: Counsel: P Wallis (Plaintiffs) J T Svehla (Defendant) Solicitors: Graham Billing & Co (Plaintiffs) Dunn Legal (Defendant) File Number(s): SC 2014/356208

EX TEMPORE Judgment (REVISED) 1The plaintiffs, Mr and Mrs Booy, are the registered proprietors of a property in Orange ("the Property"). Mr and Mrs Booy have separated, and at the moment Mrs Booy lives at the Property with the children of the marriage. 2The defendant, Mrs Peters, owns the neighbouring property. Mrs Peters is the mother of Mrs Booy. 3Mr and Mrs Booy seek an order under s 74K of the Real Property Act 1900 extending a caveat lodged by them on the title of Mrs Peters' property on 5 November 2014. Alternatively, Mr and Mrs Booy seek leave pursuant to s 74O of that Act to lodge a further caveat in the same or similar form. 4On the same day that the caveat was lodged, 5 November 2014, Mrs Peters exchanged contracts to sell her property to third parties. That contract is due to settle today. 5Mr and Mrs Booy's claim arises from a representation that they claim Mrs Peters made in late 2009 that she would transfer to them, for no consideration, part of her property. I will call that part of Mrs Peters' property "the disputed land". 6The effect of such a transfer would be, in substance, to extend the backyard of the Property. 7Mr and Mrs Booy claim that in reliance on that representation they acted to their detriment by preparing a plan of subdivision and other necessary instruments, erecting a dividing fence and performing landscaping and other works. Mr and Mrs Booy contend that they have expended almost $11,000 on reliance on Mrs Peters' representation. 8For the purpose of today's application, Mrs Peters does not dispute that the representation was made or that Mr and Mrs Booy have behaved this way. In those circumstances I am prepared to assume that there is thus a serious question to be tried that the representation was made, that Mr and Mrs Booy have acted to their detriment in reliance on it and that an equitable proprietary estoppel has arisen. 9It is, however, by no means clear to me that at the final hearing of these proceedings, Mr and Mrs Booy would obtain the relief they seek, namely an order that Mrs Peters perform the alleged agreement and do all things necessary to transfer the disputed land to Mr and Mrs Booy. 10There is in my opinion substance in the submission made by Mr Svehla, who appears for Mrs Peters, that at the final hearing of this matter the Court would be inclined only to make orders the effect of which would be to do "what is required, but not more" to do justice (per Mason CJ in Commonwealth v Verwayen (1990) 170 CLR 394 at page 413) or "the minimum equity to do justice" (per Brennan J in Verwayan at 429). 11It appears to me that there is a significant prospect that the minimum equity would involve no more than requiring Mrs Peters to compensate, in monetary terms, Mr and Mrs Booy for their expenditure and labour. 12In any event, in my opinion, the balance of convenience does not favour granting Mr and Mrs Booy the relief that they seek. This is for a number of reasons. 13First, the evidence suggests that the addition of the disputed land to the Property would increase the value of that property by something in the order of $50,000 and diminish the value of Mrs Peters' property by much the same amount. In those circumstances Mrs Peters has, through Mr Svehla, undertaken to the Court that she will pay, from the net proceeds of sale of the property, $50,000 into Court or into a controlled monies account to abide the final determination of the proceedings. 14Mr Wallis, who appeared for Mr and Mrs Booy, informed me that Mrs Booy does not wish to be involved in a dispute with her mother about money and that accordingly Mrs Peters' undertaking ought not weigh heavily in the balance. However, it is a little late for Mrs Booy to express sensitivity about litigating against her mother. She has commenced these proceedings and she will have to now see them through to their conclusion. 15Second, Mr and Mrs Booy have delayed lodging the caveat. They have been aware since at least 13 October 2014 that Mrs Peters had "decided not to proceed with the transfer of the portion of the property" (to use the words in an email sent by Mrs Peters' solicitors to Mr and Mrs Booy's solicitors on that day). Mrs Booy has been aware since 20 October 2014 that Mrs Peters had "sold" her property and that the disputed land was included in that sale. On 27 October 2014, Mr and Mrs Booy's solicitor, Mr Billing, told Mrs Peters' solicitor, Ms Hammersley, that he expected to receive instructions to lodge a caveat. Nonetheless, Mrs Booy did not make the statutory declaration in support of the caveat until 31 October 2014 and the caveat was not lodged until the morning of 5 November 2014. Mrs Peters exchanged contracts to sell her property that afternoon. 16Third, the rights of third parties, namely the purchasers from Mrs Peters have intervened. The purchasers are not joined as parties, so they cannot be heard in relation to Mr and Mrs Booy's claim. That itself is a factor weighing against granting Mr and Mrs Booy the relief they seek. 17There was some suggestion in the evidence that the purchasers knew that there may be a dispute between Mrs Booy and Mrs Peters about the disputed land. There is, however, no evidence of what steps, if any, the purchaser's solicitors took to search the title of Mrs Peters' property before exchange of contract. That is, of course, because the purchasers are not parties to the proceedings. 18The evidence before me suggests that such a search, if conducted on 5 November 2014, after the caveat was lodged, may have revealed the existence of an unregistered dealing. What the evidence does show is that Mr Billing did not himself know that the caveat had been lodged until sometime on 7 November 2014. Only then did he tell Mrs Hammersley of the lodgement of the caveat. 19Mrs Booy said that later on 7 November she spoke to one of the purchasers, Mr Levitt, who had approached her to "talk about the land fenced in your backyard." Mrs Booy's account of the conversation suggests that Mr Levitt was not then aware of the caveat. 20Fourth, the evidence suggests that there is a real possibility that the sale will be lost if the caveat remains on the title. The sale is due to be settled today. Mr Svehla informs me that the purchasers have foreshadowed serving a notice to complete if settlement does not occur today. If the caveat remains on the title, Mrs Peters will not be able to comply with that notice and the sale will likely be lost. There is evidence to suggest that resale may be difficult, and unlikely at the current sale price. 21Fifth, although Mrs Booy now asserts a strong desire to remain living at the Property and gives evidence of the deep attachment that she and her children have to the disputed land, she and her husband recently had the property on the market for sale. In any event, the sale of Mrs Peters' property will have no effect on the ability of Mrs Booy and the children to continue to live at the Property. The difference will be that the backyard will be smaller. It really comes down to that. 22In those circumstances I am not persuaded that I should grant any interlocutory relief. The plaintiffs' action for interlocutory relief is dismissed 23The plaintiffs are to pay the costs of the application before me today.