Austin BMI Pty Ltd & Anor v Ipswich Earthmoving Equipment Pty Ltd & Ors [2026] QSC 75

SUPREME COURT OF QUEENSLAND CITATION: Austin BMI Pty Ltd & Anor v Ipswich Earthmoving Equipment Pty Ltd & Ors [2026] QSC 75 PARTIES: AUSTIN BMI PTY LTD ACN 164 204 308 ATF AUSTIN STREET UNIT TRUST (first plaintiff) NEW CHUM PROPERTIES PTY LTD ACN 645 650 773 TRUSTEE UNDER INSTRUMENT 724028064 (second plaintiff) v IPSWICH EARTHMOVING EQUIPMENT PTY LTD ACN 073 585 592 (first defendant) IPSWICH EARTHMOVING MACHINERY PTY LTD ACN 659 333 570 (second defendant) HAENKE NO 3 PTY LTD ACN 625 930 921 (third defendant) ANTHONY ROBERT HALPIN (fourth defendant) BRENDON CHAPPLE (fifth defendant) PERSONS UNKNOWN (TO BE ASCERTAINED ACCORDING TO RULE 208C(2)(a) and (b) OF THE UNIFORM CIVIL PROCEDURE RULES 1999 (QLD) (sixth defendant) FILE NO/S: BS 5854/25 DIVISION: Trial Division PROCEEDING: Application ORIGINATING COURT: Supreme Court of Queensland at Brisbane DELIVERED ON: 23 April 2026 DELIVERED AT: Brisbane HEARING DATE: 9 March 2026 JUDGE: Treston J ORDER: 1. The application is dismissed. -- 1 of 10 -- 2 2. The plaintiffs are to pay the first to fourth defendants’ costs on the standard basis. CATCHWORDS: REAL PROPERTY – TORRENS TITLE – CAVEATS AGAINST DEALINGS – REMOVAL – PARTICULAR CASES – where caveat lodged by fourth defendant – where application brought to remove caveat pursuant to s 127 of the Land Title Act 1994 (Qld) – where caveator bears onus to establish a serious question to be tried – where property transferred to first plaintiff without the fourth defendant’s knowledge in circumstances where the caveator claims an interest in land – where it is alleged that an exception to indefeasibility arises as a result of statutory fraud or an equity arising from the act of the registered proprietor – where pleadings do not clearly identify issues in dispute giving rise to the serious question – whether serious question to be tried establish on the totality of the material – where serious question to be tried established REAL PROPERTY – TORRENS TITLE – CAVEATS AGAINST DEALINGS – REMOVAL – PARTICULAR CASES – where caveat lodged by fourth defendant – where application brought to remove caveat – where serious question to be tried established – whether balance of convenience favours removal of the caveat – where plaintiff does not identify substantial prejudice arising from maintenance of the status quo preserved by the caveat – where evidence favours maintenance of the caveat Land Title Act 1994 (Qld) s 127, s 184, s 185 Adderley v Dixon (1824) 1 Sim & St, cited Bahr v Nicolay (No. 2) (1988) 164 CLR 604, cited Cousins Securities Pty Ltd v CEC Group Limited [2007] 2 Qd R 520, cited Dougan v Ley (1946) 71 CLR 142, cited Genrich v Maitland Holdings Pty Ltd [1982] Qd R 58, applied Re: Jorss’ Caveat [1982] Qd R 458, cited Tara Shire Council v Garner & Ors [2003] 1 Qd R 556, applied T&L Byrne Excavations Pty Ltd v Robinson [2021] QSC 279, cited COUNSEL: M Long with R L McDermott for the plaintiffs R J Allen, solicitor, for the first to fourth defendants SOLICITORS: Thynne + Macartney for the plaintiffs Project Legal for the first to fourth defendants. -- 2 of 10 -- [1] Before me is an application pursuant to s 127 of the Land Title Act 1994 (Qld) (the LTA) that the following caveats be removed: (a) Caveat no. 724481375 lodged by the fourth defendant (Mr Halpin) over Lot 12 on survey plan 212642 title reference 50754912; and (b) Caveat no. 724481380 lodged by Mr Halpin over Lot 3 on survey plan 131707 title reference 50346985. [2] If the caveats are removed, the plaintiffs seek an injunction restraining Mr Halpin and his related entities (the first, second and third defendants), from entering the land the subject of the caveats. [3] For the reasons which follow, I dismiss the application for the removal of the caveats. Principles regarding removal of a caveat [4] The purpose of the caveat is to preserve the status quo while questions of title to land or an interest in land are investigated, and to protect the rights of any person having or claiming an interest in land.1 [5] On an application to remove a caveat the onus is on the caveator, Mr Halpin (and his related companies) to satisfy the court that: (a) the claim to an interest in the land raises a serious question to be tried, in the sense of a sufficient likelihood of success to justify the preservation of the status quo; and (b) the balance of convenience favours the retention of the caveat on the title.2 [6] On such an application, a claim for title to or interest in land should not be fully litigated, however the mere fact of making a claim or commencing an action to establish it will not support a caveat or prevent a registered proprietor from dealing with the subject land.3 How did Mr Halpin come to lodge caveats over Lots 3 and 12? [7] Mr Halpin is a businessman who has, for many years, conducted mining, industrial, and heavy equipment businesses outside of Ipswich in southeast Queensland. He operated a number of different businesses, one of which was Oxley Plant Sales Pty Ltd of which he was a director from 30 October 1995 to 14 February 2015. [8] Between 2004 and 2014, Oxley Plant Sales was the registered owner of, relevantly, two parcels of land, described in this proceeding as Lot 3 (48 Austin St, New Chum) and Lot 12 (1051 Redbank Plains Road, New Chum), the latter being land previously described as Lot 1 on SP 131707 which was subdivided in December 2008 to become, in part, Lot 12. Both properties were the subject of a mining lease. 1 Genrich v Maitland Holdings Pty Ltd [1982] Qd R 58, 67 (Andrews J, Wanstall SPJ agreeing). 2 T&L Byrne Excavations Pty Ltd v Robinson [2021] QSC 279, [25] (Bowskill SJA) citing Re: Jorss’ Caveat [1982] Qd R 458, 465 (Andrews J, Demack and Douglas JJ agreeing) and Cousins Securities Pty Ltd v CEC Group Limited [2007] 2 Qd R 520, 533 [38] (Holmes JA, Mackenzie J agreeing). 3 Genrich, 68 (Andrews J, Wanstall SPJ agreeing). -- 3 of 10 -- 4 [9] In around 2010, Mr Halpin met Stewart Elliott, and his son Graham. They had similar business interests to Mr Halpin in LNG plants and power stations. On a date which is unclear in the material, but perhaps around 2011, Mr Halpin says that the Elliotts began renting some of the land at Lot 12 for their business interests. [10] Oxley Plant Sales fell into commercial difficulty and was placed under external administration in March 2012. Receiver managers were appointed over Lot 3 in March 2012, and Lot 12 in April 2014. A liquidator was appointed in March 2015. [11] Sometime before Oxley Plant Sales was about to lose control of Lots 3 and 12 to the receivers, Mr Halpin told Stewart and Graham Elliott about the impending loss of those Lots. Mr Halpin says that Stewart Elliott told him that he wanted to be a part of the future development of Lot 3 and Lot 12, and so they reached an understanding that the Elliotts would provide the capital to purchase the properties, Mr Halpin would perform the works on the development, and the ownership of the Lots would thereafter be shared on a 50/50 basis. The agreement is undocumented. [12] Mr Halpin pleads: “c. Stewart Elliot and Graham Elliott then promised to [Mr Halpin] and intended that if they, or the companies they directed, owned Lot 3 or Lot 12, then the registered owners of the Land would hold half of the land on trust for [Mr Halpin]. 41. On and since early 2013, Stewart Elliott and Graham Elliott as settlors created an oral express trust intending to hold a half interest of both Lot 3 and Lot 12 on trust for [Mr Halpin] as a beneficiary of that half interest (Express Trust).” [13] On 17 September 2013, Stewart and Graham Elliott caused a company they controlled, Energy Equity Technology Pty Ltd (EET) to become the registered owner of Lot 12 and, on 19 November 2014, caused a related company Slipform Engineering Qld Pty Ltd to become the registered owner of Lot 3. Graham Elliott was a director of each of EET and Slipform. [14] Over the course of the next decade, Mr Halpin considered he had a good relationship with the Elliotts. He believed they shared a common plan for the development of the Lots. He and his companies remained in occupation on the properties using them for the storage of earthmoving and industrial equipment. He claims to have millions of dollars’ worth of his property stored on Lots 3 and 12 as a consequence of the endeavour they were undertaking. [15] In addition, since 2004, but particularly from 2016, Mr Halpin claims he has been carrying out development works on Lots 3 and 12 in reliance upon the agreement including construction of roads, backfilling and other earthworks, erection of concrete block retaining walls and construction of demountable offices. He claims to have invested substantial monies in this redevelopment. [16] Stewart Elliott died around mid 2024, and the business operations were taken over by Graham Elliott. -- 4 of 10 -- 5 [17] On 23 December 2024, Nick Badyk, on behalf of the plaintiffs sent an email to Mr Halpin, the subject line of which was “Lease/Land Swap deal – Triangular Parcel of land – Austin Street New Chum”. The Badyk email contained the following, with my underlining added: “As discussed, here is an outline draft terms of a proposed agreement regarding the lease and subsequent land swap of our respective properties at New Chum. We refer to the attached map and note the following areas: 1. Blue = BMI land 2. Green = Elliott/Halpin land 3. Red = Elliott/Halpin access points 4. Blue line – Proposed road improvements Based on our previous discussions, the intentions of the parties are to: 1. Grant a lease to Austin BMI Pty Ltd over the area identified in green (“the Land”); and 2. Facilitate a subsequent exchange of freehold title of the properties which are marked in blue and green.” [18] The map marked in green, it is agreed, is Lot 3. Mr Halpin puts significant weight on the Badyk email and, in particular, on the characterisation of Lot 3 as “Elliott/Halpin land” and the reference to “our respective properties”. [19] The balance of the Badyk email records: “Outstanding Details (Tony – these will be detailed in the formal offer so we will need your confirmation/comments) The following matters require further clarification and agreement: (a) Warranties and covenants: Mr Halpin will warrant and covenant that he holds the requisite authority to enter into the deed, grant the lease, and facilitate the freehold title swap. (b) Timing: Specific timeframes for the lease commencement, its duration and the conversion to the land swap arrangement. (c) Approvals: Any statutory or third party consents required to give effect to the proposed lease and subsequent land swap. (d) Other conditions: Any additional terms, conditions, or obligations to be included in the lse and subsequent transfer documents.” [20] No “exchange” of freehold title took place. -- 5 of 10 -- 6 [21] On 1 May 2025, the first plaintiff, as trustee of the Austin Street Trust purchased Lot 3 and Lot 12. [22] On 6 May 2025, Mr Halpin became aware that Lots 3 and 12 had been sold. [23] On the same day, Mr Badyk sent a text message to Mr Halpin which reads: “I do need to chat re change of ownership of Lots 3 & 12, 1051 Redbank Plains Road. You are probably aware (based on your advice you had some interest in the property with Mr Elliott) it was sold and settled last week to the new owners Austin BMI …” (my underlining) [24] On 11 November 2025, Mr Halpin lodged caveats over Lots 3 and 12. [25] By his counterclaim, Mr Halpin seeks orders that he be registered on the title as a half owner of Lots 3 and 12, alternatively for a declaration of a constructive trust as to one half of each Lot, or equitable compensation. Is there a serious question to be tried? [26] As the registered proprietor of the land, the first plaintiff has indefeasible title unless one of the recognised exceptions applies. Pursuant to s 184 LTA, a registered proprietor is not affected by actual or constructive notice of an unregistered interest affecting the lot. Indefeasibility is not, however, an absolute principle,4 s 184(3) LTA providing that the indefeasibility of a registered interest does not apply to the exceptions outlined in s 185, or where there has been fraud by the registered proprietor. [27] Mr Halpin seeks to invoke the statutory fraud exception (fraud by the registered proprietor, whether or not there has been fraud by a person from or through whom the registered proprietor has derived the registered interest: s 184(3)(b) LTA) and in personam exceptions (an equity arising from the act of the registered proprietor: s 185(1)(a) LTA) principally arising from the second limb of Barnes v Addy.5 [28] The statutory fraud exception to indefeasibility of title is not the same as fraud in a common law sense but involves “actual fraud, personal dishonesty or moral turpitude”.6 What constitutes fraud is case specific, but here, Mr Halpin asserts that the evidence is capable of demonstrating the agreement to hold the Lots on trust for Mr Halpin as to 50 per cent which has not been honoured. Whilst he asserts that might, after a trial, amount to actual fraud, it is sufficient if it amounts to personal dishonesty or moral turpitude. At the very least, he contends that the registered proprietor has gained title by knowingly participating in a breach of trust. [29] I mention briefly the various allegations that Mr Halpin pleads to substantiate the contention that an exception to indefeasibility ought apply to the first plaintiff’s interest, including: 4 Tara Shire Council v Garner & Ors [2003] 1 Qd R 556, [50] (Atkinson J). 5 Tara, [53] (Atkinson J). 6 Bahr v Nicolay (No. 2) (1988) 164 CLR 604, 614 (Mason CJ and Dawson J). -- 6 of 10 -- 7 (a) an asserted sale of the Lots at undervalue - the price paid in respect of each of the Lots was $2 million, which Mr Halpin asserts is grossly below market value. Mr Halpin alleges that the market value of Lot 12 is $31.1 million, and the market value of Lot 3 is $8.4 million, being a total market value of $39.5 million; (b) that negotiations between the first plaintiff, EET and Slipform were conducted “in secret” in circumstances where the first plaintiff knew that Mr Halpin had an interest in the land; (c) that first plaintiff knew that Mr Halpin or his companies had performed development work on the land over a period of years; (d) that the first plaintiff knew that both properties were purchased off-market in circumstances where the properties were not marketed or even advertised as being for sale; (e) that the first plaintiff purchased the properties for the same consideration from related parties, sharing a common director, Graham Elliott, despite those properties not being comparable in size or, it is said, in geographic advantages; and (f) that each of the plaintiff, Graham Elliott, EET and Slipform “all conspired to sell and purchase Lot 3 and Lot 12 without reference to, or knowledge of, (Mr Halpin’s interest) despite each knowing about and acknowledging the interest to Mr Halpin. [30] It is unnecessary for me to consider each of these allegations in turn. It is sufficient if I am satisfied that the evidence to which I have already referred gives rise to a prima facie case. [31] The plaintiffs do not accept that there is a serious question to be tried that arises out of Mr Halpin’s counterclaim as pleaded. I accept that the defendants’ pleaded case tends not to expose the true cause of action as clearly as it might. On more than one occasion on the hearing of this application, I enquired of the solicitor for Mr Halpin whether an adjournment was required so that the counterclaim as pleaded could be considered, perhaps by counsel, with a view to more clearly pleading the claim, but on each occasion, including with the benefit of the lunch adjournment, such opportunities were eschewed. [32] Putting aside the inadequacies of the pleading, I nevertheless find that the evidence supports a serious question to be tried arising out of the course of conduct between the parties over a period of many years. There are a number of factors that give rise to this finding. [33] First, the Badyk email, along with Mr Halpin’s evidence (upon which he was not cross-examined), together are sufficient to demonstrate an arguable case of personal dishonesty or moral turpitude. Whether the evidence ultimately rises to the level of actual fraud is not a matter which can be decided on an application such as this. Alternatively, in my view, the evidence is capable of demonstrating a serious question to be tried in relation to the in personam exception in s 185(1)(a) LTA. That is because the evidence demonstrates, at a prima facie level, either an agreement to hold the Lots on trust, such that it would be unconscionable for the legal owner to deny Mr Halpin’s -- 7 of 10 -- 8 asserted beneficial interest, or an agreement to hold the Lots on trust and a transfer of the Lots with knowledge held by the legal owner that the transfer was made in breach of trust, such that a claim for knowing receipt may arise in accordance with the second limb of Barnes v Addy. [34] Second, I have regard to an affidavit from a solicitor, Mr Rivett, who deposes to a conversation that he had with Graham Elliott in about 2023 or 2024, in which Mr Elliott admitted that he and his father had “an agreement” with Mr Halpin to hold the land 50 per cent on trust for him, and that Mr Halpin would go about developing it. Mr Rivett was not cross examined. His evidence supports Mr Halpin’s claim that the property is held on express trust or constructive trust, and arguably, that registration has been affected with knowledge that the transfer is in breach of trust.7 [35] Mr Halpin’s and Mr Rivett’s evidence is enough to establish a serious question to be tried. Other factors of lesser weight however include that despite the detailed affidavit given by Mr Halpin, Graham Elliott has not filed any affidavit in support of the application to remove the caveat. Accordingly, there is not currently any direct challenge to much of Mr Halpin’s evidence as set out above, or that of Mr Rivett. Stewart Elliott is deceased and no evidence from him under section 92 of the Evidence Act 1977 (Qld) has been placed before me. [36] Rather, the plaintiffs rely upon affidavits of their general manager, Mr Dekker, who provides no direct evidence to challenge the factual basis of the oral agreements and reliance upon those agreements over the course of 2013 to 2025. [37] Again, although of less weight, the plaintiffs produce no affidavit from Mr Badyk, who wrote the Badyk email. Mr Dekker deposes to certain matters based on information and belief arising out of instructions he has taken from Mr Badyk, but none of those matters go the substance of Mr Halpin’s allegations that the Elliotts agreed to hold one half of Lots 3 and 12 on trust for Mr Halpin. Plainly, Mr Badyk was available to provide information to Mr Dekker, or explain the Badyk email, but that evidence is not produced by the plaintiffs. While I do not draw any adverse inference from the absence of an affidavit of Mr Badyk, it remains the case that there is no real challenge to the factual matters asserted by Mr Halpin, which appear to be supported by the Badyk email. [38] The mere denials in the plaintiffs’ reply and answer are no answer to this evidentiary gap. [39] Ultimately, the evidence of Mr Halpin and Mr Rivett supports the conclusion that there is a serious question to be tried. The land highlighted in green in the Badyk email was, on the evidence, land occupied and used by the Elliotts and Mr Halpin, including their associated corporate entities. According to the Badyk email, there had been previous discussions between unidentified persons, and the intentions of the parties then included to grant a lease to Austin BMI Pty Ltd over the land coloured in green in the email, being Lot 3. A lease in favour of Austin BMI would not have been contemplated, unless the land was owned or to be owned by a party other than Austin BMI. The Badyk email suggests the land in green, Lot 3, was to be ‘exchanged’ for the land in blue. The inference is that at the time of the Badyk email, the parties thought the blue land (Lot 12) and the green land (Lot 3) were owned by them both, 7 Tara, [91] (Atkinson J). -- 8 of 10 -- 9 and the proposed arrangement was that the co-ownership of each was to be exchanged for the sole ownership of one or the other. [40] In relation to that issue, the plaintiffs contend that what is meant by the description of Lot 3 as “Elliott/Halpin land” in the Badyk email is equivocal. Neither the Elliotts nor Mr Halpin owned the land identified in green in the Badyk email; rather it was land registered in the name of EET. While I accept that the description “Elliott/Halpin land” does not rise to an admission that Mr Halpin held a legal or equitable interest in Lot 3, in the context of Mr Halpin’s and Mr Rivett’s unchallenged evidence, and the plaintiffs’ legitimate forensic choice not to produce any evidence from Graham Elliott or Mr Badyk, it is a construction that I am satisfied rises to the threshold of a serious question to be tried. [41] While some of the evidence above is directly relevant to Lot 3 rather than Lot 12, the context of the asserted agreement to hold them both on trust is clear enough. The evidence is relevant, on a serious question to be tried, to both caveats. [42] That is enough to dispose of that question. What is the balance of convenience? [43] The balance of convenience is plainly in favour of the status quo. [44] First, Mr Dekker does not depose to the plaintiffs holding any intention to sell the land; to the contrary the plaintiffs wish to develop it. He contends that delay in redevelopment causes immediate and ongoing losses for the plaintiff but could not put a reliable figure on the value of the delay. [45] There is no compelling evidence to suggest that any development, will be disrupted by the caveat. If Mr Halpin has rights to object to the redevelopment, those rights likely arise out of his asserted co-ownership. That is a factor in favour of the maintenance of the caveat. [46] Second, Mr Dekker identifies that Mr Halpin continues to occupy the land and to advertise a business purporting to allow others to dump construction and other waste on the land. That appears to be the same business which Mr Halpin was carrying out when the alleged agreement was reached with the Elliotts, and has carried on in the decade since. The continuation of the same usage balanced against a change of use consequential of the redevelopment is in fact a matter in favour of that status quo, and the maintenance of the caveats. [47] Third, the plaintiffs’ expressed intention to change the trustee from the first plaintiff to the second plaintiff risks interference with Mr Halpin’s possible remedy against the first plaintiff – that is a matter of significance in favour of the caveat remaining. [48] Fourth, Mr Halpin claims that equitable compensation is not an adequate remedy. I cannot decide this issue, but it has long been recognised that compensation is often not an adequate remedy in place of land.8 8 Adderley v Dixon (1824) 1 Sim & St, 610; Dougan v Ley (1946) 71 CLR 142, 150 (Dixon J) (albeit in the context of specific performance of a contract for the sale of land). -- 9 of 10 -- 10 [49] Finally, as I said at the outset, the very purpose of the caveat is to preserve the status quo while questions of title to land or an interest in land are investigated, and to protect the rights of any person having or claiming an interest in land.9 Even were none of the four reasons set out above sufficient, alone or in combination, the purpose of the caveats alone, in conjunction with the serious question to be tried, would have satisfied me, in the circumstances of this case, to maintain them. [50] The plaintiffs’ application to remove the caveat is dismissed, with costs. [51] The plaintiffs also pressed for other relief incidental to the removal of the caveat, including injunctive relief barring Mr Halpin from Lot 12 and Lot 3, were I to have concluded there was no serious question to be tried concerning his claimed equitable interest. As I have concluded there is a serious question to be tried, it is unnecessary to consider that relief. 9 Genrich, 67. -- 10 of 10 --