Supreme Court New South Wales Medium Neutral Citation: Day v Munday [2019] NSWSC 452 Hearing dates: 23 April 2019 Date of orders: 23 April 2019 Decision date: 23 April 2019 Jurisdiction: Equity - Duty List Before: Kunc J Decision: Summons dismissed with costs. Catchwords: LAND LAW — Caveats — Caveatable interest — No arguable case for an interest in land Legislation Cited: Real Property Act 1900 (NSW) Cases Cited: Stojanovski v Stojanovski [2013] NSWSC 1491 Woodsman Pty Limited v Jozic [2018] NSWSC 1311 Category: Principal judgment Parties: Henry Coglin Day (Plaintiff) Frances Helen Munday (Defendant) Representation: Counsel: H Day (Plaintiff in person) A R Jordan (Defendant) Solicitors: Johnson & Sendall (Defendant) File Number(s): 2019/114749 Publication restriction: No Ex Tempore Judgment (REVISED) Summary 1. This is an application by the plaintiff ("Mr Day") to extend the operation of a caveat (the "Caveat") over a property in Goulburn (the "Goulburn Property") which is owned by the defendant ("Mrs Munday"), who is Mr Day's mother. 2. Mr Day has represented himself since the inception of these proceedings by the filing of his summons in the Duty List on 12 April 2019. Mr A R Jordan of counsel has appeared for Mrs Munday, who opposes the extension of the operation of the Caveat. 3. The ground of opposition to the extension is straightforward, namely that the Caveat does not disclose a caveatable interest in the Goulburn Property. For the reasons which follow, the Court accepts that submission. The facts 1. In 2004 Mrs Munday became the registered proprietor of the Goulburn Property. 2. In 2005 Mr Day, Mrs Munday and her late husband ("Mr Munday") entered into a tenancy agreement (the "Tenancy Agreement") pursuant to which Mr Day agreed to lease a property at Kambah in the Australian Capital Territory (the "ACT Property") to Mr and Mrs Munday for a term concluding on 31 December 2015. Mr and Mrs Munday continued in occupation of the ACT Property after that term had expired. 3. Mr Day's evidence (which is denied by Mrs Munday) is that in late 2014 or early 2015, Mrs Munday "made an undertaking" to give the Goulburn Property to Mr Day as a form of compensation for the "many years of subsidising their living". On his own submission, the highest Mr Day's evidence rises is set out in paragraph [5] of his affidavit of 15 April 2019: "(a) Mrs Munday first made an undertaking to me in private (ie. Without my father being present) stating that she was the registered owner (not her words. She used words to the effect of "it's in my name") and that she gave me an interest in that property because of my financial support of them for many years. Mrs Munday's undertaking was made after the birth of my daughter in either late 2014 or early 2015. (b) Subsequent to this undertaking, this agreement was again discussed on several occasions between then and 22 May 2016. During these subsequent discussions, Mr Munday was also present and aware of the topic being discussed. (c) At one time, Mrs Munday proposed a "property swap" between the Goulburn Property and my property at Kambah. Prior to this, Mr Munday had claimed that the Goulburn Property was only worth the land value and at most that was $60,000. I explained that I could not possibly swap a house mortgaged at $300,000 with a block of land worth $60,000 but was willing to make improvements to the house on the Goulburn Property to improve its overall value. I discussed rebuilding the kitchen and bathroom end of the house to incorporate an inside toilet and improved facilities. (d) My undertaking improvements to the house at Goulburn was discussed several times until the 22 May 2016 when Mrs Munday then claimed the property at Goulburn had been condemned and was unable to be used as a residence. (e) Reference to this agreement was document in an exchange that occurred at the ACT Civil and Administrative Tribunal's Tenancy Tribunal hearings relating to the eviction of Mr and Mrs Munday from my Kambah property. This exchange recorded in the transcript of proceedings, unfortunately time constraints have prevented me from obtaining a copy of the transcript, but words to the effect of "ME: you guys are idiots, the longer you drag this out the worse it is because I'll own the Goulburn house. MR MUNDAY (in response): Oh, so that is what this is all about …" 1. On 16 June 2016, Mr Day filed an application with the ACT Civil and Administrative Tribunal (the "Tribunal") for a termination and possession order evicting his parents from the ACT Property. 2. On 17 October 2017, the Tribunal made orders that, among other things, terminated the Tenancy Agreement in relation to the ACT Property and that Mr and Mrs Munday were to vacate that property. 3. On 1 November 2018, Mr Munday died. 4. On 14 November 2018, Mr Day filed three applications with the Tribunal seeking damages from Mrs Munday and Mr Munday's estate for alleged breaches of the Tenancy Agreement. 5. On 14 December 2018, Mrs Munday exchanged contracts to sell the Property to a third party. Settlement of that transaction was to take place on 14 March 2019. 6. On 21 February 2019 the Tribunal made ex parte orders in two of Mr Day's applications against his mother and late father's estate to pay $48,198 to Mr Day. 7. On 28 February 2019 Mr Day lodged the Caveat which claimed this interest supported by the following particulars: The Caveator claims an interest described in the following terms: "The Caveator claims $49,727.60 damages based on an ACT tenancy Agreement that was guaranteed by Mrs Munday Against Lot 9/DP xxxxx." The interest is said to arise by virtue of "NSW Orders Register Items XXXX and XXXX" made on 21 February 2019 against Mrs Munday and the estate of Mr Munday. The interest is also said to arise by virtue of the following facts: "Breach of lease conditions resulting in debt owed to caveator as per registered orders." 1. On 2 April 2019, the Tribunal's orders were set aside. 2. On 12 April 2019, in the Duty List, Mr Day was granted leave to commence these proceedings by a summons which claims: "1. Under provision of Section 74D subsection (1) of the Real Property Act 1900, the Court make an Order extending the operation of Caveat No. AP88587 for a further period to allow time for the Court to consider making Orders under a Family Provision Application. 2. Further, the Plaintiff seeks an Order dispensing with the requirement to serve a copy of this Subpoena on the Defendant and seeks that under subsection 74D (2) of the Real Property Act 1900, the Order be made ex-parte. 3. Any such ancillary orders as the Court thinks fit." Consideration 1. Before turning to the submissions made by Mr Jordan, it is appropriate to observe that the summons is, on its face, defective insofar as it only seeks orders for the extension of the Caveat. A caveat is in the nature of an injunction. The Court will not make orders for the extension of a caveat unless that extension is sought in aid of final relief. There is no final relief sought in Mr Day's summons. 2. For understandable reasons, Mr Jordan's submissions did not raise any difficulties with the summons, obvious as they may be, because this matter is appropriately dealt with on its merits. Those merits require consideration of whether there is an arguable case that Mr Day has a proprietary interest of some kind in the Property. Mr Jordan's primary submission was that the interest claimed in the Caveat, even on its own terms, was not an adequate description of an interest in the Property. I accept that submission for the reasons I will next set out. 3. In and of itself, an award for damages will not give rise to a caveatable interest in land. Mr Day submitted that the effect of the "undertaking" set out in his evidence which I have reproduced in paragraph [6] above was sufficient to demonstrate that somehow Mrs Munday had agreed to secure the damages awarded by the Tribunal against the Property. Contrary to his submission, Mr Day has presented no evidence to that effect and I am unable to identify any case, let alone an arguable case, that would sustain the proposition that Mr Day has any interest in the Property by virtue of the damages awarded by the Tribunal. Furthermore, the damages order has now been set aside and I do not doubt that the NSW registration of that order will be undone. 4. Mr Jordan submitted that this was a case similar to that considered by Darke J in Woodsman Pty Limited v Jozic [2018] NSWSC 1311. In that case his Honour held that recourse could not be had to s 74L of the Real Property Act 1900 (NSW) in circumstances where the caveat simply failed to disclose any caveatable interest. I accept that submission. The Caveat does not disclose any caveatable interest in the Property and the evidence does not support the existence of any similar kind of interest that has been imperfectly described so as to attract the operation of s 74L. 5. Two other observations should be made. 6. First, it will be seen from the summons that one of the motivating factors for Mr Day to have brought these proceedings was family provision proceedings that he has now commenced in this Court against Mr Munday's estate. The commencement of those proceedings does not help Mr Day in his case for an order extending of the Caveat. A claim for family provision does not give rise to a caveatable interest: Stojanovski v Stojanovski [2013] NSWSC 1491 at [31] per Slattery J. 7. Second, I should record that Mr Day's evidence and his submissions also went to a claim based on the "undertaking" that he put in the following way. Mr Day submitted that in late 2014 or early 2015 his mother had given him the "undertaking" that the Property would be his because of previous financial support which he had given to his parents and in relation to further financial support that he continued to provide, including permitting his parents to continue to reside at the ACT Property. Conformably with Darke J's decision to which I have referred in paragraph [19] above, the fact that Mr Day may have some other proprietary interest in the Property does not provide a basis for the extension of the Caveat, which claims an entirely different interest. 8. In addition, on the material which has been presented today, I am unable to see how Mr Day would have a claim to the Property based on some kind of equitable proprietary estoppel. Most of the financial assistance he says he provided to his parents predates the alleged undertaking and therefore could not have been given in reliance on it. Insofar as he gave his parents any further financial assistance and allowed them to occupy the ACT Property after the date of the undertaking, that arrangement came to an end within twelve months after the undertaking was alleged to have been given when Mr Day had his parents evicted from the ACT Property. 9. I am not to be taken as reaching any final conclusion about the merits of this alternative case to which Mr Day has made reference. In this judgment I have recorded what he said because he did make submissions about it. In any event, it is a quite different claim from that asserted in the Caveat and, even if it could be established to the requisite standard to support a caveat, it does not provide a reason to extend the Caveat. Conclusion 1. The orders of the Court are: 1. Summons dismissed. 2. Plaintiff to pay the defendant's costs. ********** 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. Decision last updated: 24 April 2019