Cousins Securities Pty Ltd & Ors v CEC Group Ltd & Anor; CEC Group Ltd v Cousins Securities Pty Ltd & Ors [2007] QCA 192 [2007] 2 Qd R 520

SUPREME COURT OF QUEENSLAND CITATION: Cousins Securities P/L & Ors v CEC Group Ltd & Anor; CEC Group Ltd v Cousins Securities P/L & Ors [2007] QCA 192 PARTIES: COUSINS SECURITIES PTY LTD ACN 080 152 914 (first plaintiff/first respondent) RUSSELL KINGSLEY COUSINS (second plaintiff/second respondent) COLLEEN JUDITH COUSINS (third plaintiff/third respondent) GERALD ANDREJIC PTY LTD ACN 107 403 056 (fourth plaintiff/fourth respondent) GERALD ANDREJIC (fifth plaintiff/fifth respondent) v CEC GROUP LIMITED ACN 010 025 831 (first defendant/appellant) EDMONTON PROJECTS PTY LTD ACN 107 961 359 (second defendant/not party to appeal) CEC GROUP LIMITED ACN 010 025 831 (applicant/appellant) v COUSINS SECURITIES PTY LTD ACN 080 152 914 (first respondent/first respondent) RUSSELL KINGSLEY COUSINS (second respondent/second respondent) COLLEEN JUDITH COUSINS (third respondent/third respondent) EDMONTON PROJECTS PTY LTD ACN 107 961 359 (fourth respondent/not party to appeal) FILE NO/S: Appeal No 9793 of 2006 Appeal No 9794 of 2006 SC No 6379 of 2006 SC No 7961 of 2006 DIVISION: Court of Appeal PROCEEDING: General Civil Appeal ORIGINATING COURT: Supreme Court at Brisbane DELIVERED ON: 8 June 2007 DELIVERED AT: Brisbane HEARING DATE: 26 February 2007 -- 1 of 16 -- 2 JUDGES: McMurdo P, Holmes JA and Mackenzie J Separate reasons for judgment of each member of the Court, each concurring as to the orders made ORDER: 1. In CA No 9793 of 2006, appeal dismissed with costs 2. In CA No 9794 of 2006: (a) appeal allowed to the limited extent of varying the order of 31 October 2006 by adding at the commencement of para 1 of that order the words: "Upon the undertaking of the first respondent Cousins Securities Pty Ltd ACN 080 152 914 and the second respondent Russell Kingsley Cousins and the third respondent Colleen Judith Cousins as to damages in the usual form …" (b) otherwise, the appeal is dismissed with costs CATCHWORDS: CONVEYANCING – LAND TITLES UNDER THE TORRENS SYSTEM – BRINGING LAND UNDER THE ACT – PRACTICE WHERE CONFLICTING CLAIMS – LAPSE, REMOVAL AND WITHDRAWAL OF CAVEATS – LAPSE – TIME AT WHICH CAVEAT LAPSES – where the appellant entered into a joint venture with the first respondent – where the appellant repaid the debt owing on land purchased by the joint venture and the mortgage was assigned to them – where the first, second and third respondents lodged a caveat against registration of any instrument over the land – whether the respondents failed to start proceedings to establish the interest claimed under the caveat, as under s 126(4) of the Land Title Act 1994 (Qld), within three months – whether this caused the caveat to lapse PROCEDURE – SUPREME COURT PROCEDURE – QUEENSLAND – PROCEDURE UNDER RULES OF COURT – PLEADING – STATEMENT OF CLAIM – whether in order to start a proceeding to establish an interest under a caveat the relief sought must be stated in the claim and not merely the statement of claim CONVEYANCING – LAND TITLES UNDER THE TORRENS SYSTEM – BRINGING LAND UNDER THE ACT – PRACTICE WHERE CONFLICTING CLAIMS – LAPSE, REMOVAL AND WITHDRAWAL OF CAVEATS – LAPSE – TIME AT WHICH CAVEAT LAPSES – whether the learned judge erred in finding there was a serious question to be tried as to the respondent’s entitlement to the interest claimed under the caveat CONVEYANCING – LAND TITLES UNDER THE TORRENS SYSTEM – BRINGING LAND UNDER THE ACT – PRACTICE WHERE CONFLICTING CLAIMS – LAPSE, REMOVAL AND WITHDRAWAL OF CAVEATS – LAPSE – TIME AT WHICH CAVEAT LAPSES – where the caveatable interest claimed by the respondents was 2,521 -- 2 of 16 -- 3 square metres – where the caveat in fact forbade registration of any instrument over the whole of Lot 9 (746.134 hectares) – whether the caveat was too wide in scope Land Title Act 1994 (Qld), s 126(4), s 126(5), s 127(1) Property Law Act 1974 (Qld), s 55 Uniform Civil Procedure Rules 1999 (Qld), r 9, r 22, r 149, r 377, r 387(3) Australian Broadcasting Corporation v O’Neill (2006) 229 ALR 457, considered Bidjara Aboriginal Housing and Land Co Ltd v Bidjara Motor Corp Pty Ltd [2005] QCA 196; Appeal No 10628 of 2004, 10 June 2005, considered Re Burman, unreported, Lee J, OS No 211 of 1991, 16 April 1991, considered Gasiunas v Meinhold [1964] 6 FLR 182, considered Re Hardy’s Caveat [1969] QWN 4, considered Re Henderson's Caveat [1998] 1 Qd R 632, followed Re Jorss’ Caveat [1982] Qd R 458, considered Just GI Pty Ltd v Pig Improvement Co Australia Pty Ltd [2001] QCA 48; Appeal No 5723 of 2000, 27 February 2001, applied MGM Containers Pty Ltd v Wockner [2006] QCA 502; Appeal No 9554 of 2006, 1 December 2006, considered Renowden v McMullin (1970) 123 CLR 584, distinguished Staples v Staples [1952] VLR 25, considered COUNSEL: D Cooper SC, with C Francis, for the appellant M Stewart SC, with S Monks, for the respondents SOLICITORS: Clayton Utz for the appellant Lillas & Loel Lawyers for the respondents [1] McMURDO P: Holmes JA has set out the relevant facts and issues so that my reasons for agreeing with the orders she proposes can be shortly stated. The appeal against the dismissal of the application to set aside the respondents' caveat [2] The first respondent, Cousins Securities Pty Ltd, and the second and third respondents, Russell Kingsley Cousins and Colleen Judith Cousins ("the Cousins"), lodged a caveat over specified land on 23 June 2006. The grounds of the caveatable claim were: "As beneficiary under a constructive trust or otherwise by operation of law, pursuant to the unconditional obligation assumed by the registered owner under clause 2.8.3 of a written contract dated 12 February 2006 (sic)1 between the registered owner and Cousins Securities Pty Ltd ACN 080 152 914 (and others) as joint venture partners." 1 The contract was dated 12 February 2004. -- 3 of 16 -- 4 [3] The Cousins' caveatable claim relied on s 55 Property Law Act 1974 (Qld) giving them an equitable interest in the specified land the subject of the caveat under a contract to which they were not a party. Under cl 2.8.3 of the contract, the fourth respondent to this appeal, Edmonton Projects Pty Ltd,2 was to transfer to the Cousins a particularised portion of the specified land the subject of the caveat in satisfaction of their claims for work done. [4] Under s 126(4) Land Title Act 1994 (Qld): "(4) If a caveator does not want a caveat to which this section applies to lapse, the caveator must – (a) start a proceeding in a court of competent jurisdiction to establish the interest claimed under the caveat – … (ii) … within 3 months after the lodgment of the caveat;" [5] The first, second and third respondents, together with other plaintiffs, filed a claim and statement of claim against the appellant and Edmonton Projects Pty Ltd in the Supreme Court on 1 August 2006. Neither the claim nor the statement of claim pleaded a claim for relief involving any interest in the specified land. The statement of claim (but not the claim) did, however, plead facts including cl 2.8.3 of the contract,3 s 55 Property Law Act 1974 (Qld)4 and that the Cousins acquired an equitable interest in the specified land the subject of the caveat.5 An amended statement of claim filed on 14 August 2006 added in its claim for relief that the Cousins sought a declaration that they held an equitable estate in the specified land. The first, second and third respondents did not then apply for leave of the court to amend the claim itself (the originating process) under Uniform Civil Procedure Rules 1999 (Qld) ("UCPR") r 377 which generally requires that an originating process not be amended without leave of the court. On 20 October 2006 the primary judge granted their application under r 377 to amend the claim itself in the terms of the relief sought in the amended statement of claim of 14 August 2006. [6] I agree with Holmes JA that the amendment made to the claim itself on 20 October 2006 did not have retrospective effect under UCPR r 387(3) for the purposes of s 126(4) Land Title Act 1994 (Qld).6 [7] The appellant contends that to start a proceeding under s 126(4) Land Title Act 1994 (Qld) the UCPR require that the relief sought must be stated in the claim itself and not merely in the statement of claim; as that was not done within three months of lodging the caveat, s 126(4) has the effect that the caveat has lapsed. [8] Chapter 2 of the UCPR is entitled "STARTING PROCEEDINGS" (r 8-r 59), Pt 3 of which is headed "CLAIMS" (r 21-r 24). Under UCPR r 22 a plaintiff must: (2)(a) state briefly in the claim the nature of the claim made or relief sought in the proceeding; and 2 Edmonton Projects Pty Ltd did not appear at the appeal hearing nor at the primary court hearing but its solicitors indicated to the primary court that it did not wish to participate in the proceedings. 3 Statement of claim, para 10, AB 513. 4 Above, para 20, AB 516. 5 Above, para 22, AB 517. 6 See Holmes JA's reasons para [29]. -- 4 of 16 -- 5 (b) attach a statement of claim to the claim. [9] Rule 22 does not require that the claim itself state the relief sought. Indeed, r 22(2)(a) uses the disjunctive "or" instead of the conjunctive "and". UCPR r 149,7 however, requires that each "pleading" must "state specifically any relief the party claims". The dictionary in the UCPR relevantly defines "pleading" as "(a) for a plaintiff – a concise statement in a claim of the material facts on which the plaintiff relies" and "claim" as "a document under Ch 2 Pt 3 starting a proceeding". The "pleading" for the purposes of UCPR r 149, therefore includes both the claim and statement of claim attached to it (r 22). To comply with r 149 it is sufficient if the relief sought is included in the statement of claim attached to the claim. In this case leave was not required under r 377 to amend the statement of claim by adding the claim for relief on 14 August 2006; the statement of claim was not the originating process. [10] The first, second and third respondents filed their claim and statement of claim on 1 August 2006. Although neither document then stated that the Cousins claimed relief involving an interest in the specified land the subject of the caveat, the statement of claim pleaded the facts establishing their interest claimed under the caveat. In my view, this was sufficient to start a proceeding to establish the interest claimed under the caveat for the purposes of s 126(4) Land Title Act 1994 (Qld). The amended statement of claim filed on 14 August 2006 included the Cousins' claim for relief for a declaration that they held an equitable estate in the land the subject of the caveat. In terms of UCPR r 149, the Cousins' pleadings then claimed relief including an equitable interest in the land the subject of the caveat. Certainly by 14 August 2006, within three months of lodging the caveat, the Cousins had started a proceeding to establish their interest claimed under the caveat so that the caveat did not lapse under s 126(4). The appellant's reliance on Renowden v McMullin8 in the present case is misguided. That case concerned a quite different factual scenario to the present and a procedural regime to that which now operates in Queensland under the UCPR, the relevant portions of which are discussed above; nor did it involve a legislative provision comparable to s 126(4). This contention fails. [11] I agree with Holmes JA's reasons for concluding that the appellant has not demonstrated any error in the primary judge's conclusion that there was a serious question to be tried as to whether the Cousins had the interest claimed under the caveat. [12] I agree with Holmes JA's reasons for concluding that the caveat was not too wide in that it referred to the whole of the specified land and not merely that portion over which the Cousins claimed an equitable interest. [13] Unlike the Cousins, the first respondent caveator, Cousins Securities Pty Ltd, has not pleaded the claim against the appellant set out in the grounds of claim of the caveat. It may be that the first respondent joined in the caveat because it was, unlike the Cousins, a party to the contract referred to in the grounds of claim in the caveat. In any case, the appellant would gain no readily discernible advantage by striking out the first respondent's name from the caveat and has not sought such an order. 7 Rule 149 is contained in UCPR Ch 6 – PLEADINGS, Pt 2 – RULES OF PLEADING. 8 (1970) 123 CLR 584. -- 5 of 16 -- 6 [14] I agree with Holmes JA that the appeal should be dismissed with costs, save for adding a condition to the primary judge's order as to the first, second and third respondents' undertaking as to damages. The appeal against the pleadings [15] I agree with Holmes JA's reasons for concluding that the appellant has not shown sufficient reason to warrant this Court's interference with the primary judge's exercise of discretion in this interlocutory matter. The appeal should be dismissed with costs ORDERS: 1. In CA No 9793 of 2006, appeal dismissed with costs. 2. In CA No 9794 of 2006: (a) appeal allowed to the limited extent of varying the order of 31 October 2006 by adding at the commencement of para 1 of that order the words: "Upon the undertaking of the first respondent Cousins Securities Pty Ltd ACN 080 152 914 and the second respondent Russell Kingsley Cousins and the third respondent Colleen Judith Cousins as to damages in the usual form …"; (b) otherwise, the appeal is dismissed with costs. [16] HOLMES JA: These appeals were brought together, one against a decision of the learned applications judge to refuse an application to remove a caveat and the other against his refusal to strike out particular paragraphs in an amended statement of claim which, among other things, was said to form part of a proceeding to establish the interest claimed under the caveat. Background [17] The appellant CEC Group Limited had agreed with the first respondent, Cousins Securities Pty Ltd, and another company to enter a joint venture, the vehicle for which was Edmonton Projects Pty Ltd. The second and third respondents, Mr and Mrs Cousins, were the principals of the first respondent. Importantly, one of the terms of the agreement was as follows: “2.8.3 The company will transfer to Russell Kingsley Cousins and Colleen Judith Cousins, related entities to Cousins Securities Pty Ltd (“the transferees”) as a joint venture expense and the transferees will accept in full and final satisfaction of all claims against the joint venture for work carried out to the date of execution of the joint venture agreement, freehold title to Lot 1 as proposed on Layout Plan No. 9603/STGI, having an area of 2521sqm, free from encumbrances and transferred simultaneously with the last other allotment to be sold in the first 3 stages of the development of the Land at the cost and expense of the transferees, subject to the provisions of the Land Sales Act”. The “company”, by definition in the joint venture agreement, meant Edmonton Projects Pty Ltd. [18] The land was purchased by Edmonton on vendor finance terms, but it was unable to repay the debt, which was secured by mortgage. Instead, the appellant paid it and the mortgage was assigned to it. On 23 May 2006, the Cousins and Cousins Securities lodged a caveat forbidding registration of any instrument over the land, -- 6 of 16 -- 7 which was described as “Lot 9 on CPN15737”. The interest claimed was “an equitable estate in fee simple over the above described land to the extent of Lot 1 on proposed Layout Plan No. 9603/STG1 having an area of 2,521 square metres.” The grounds of claim were set out as follows: “As beneficiary under a constructive trust or otherwise by operation of law, pursuant to the unconditional obligation assumed by the registered owner under clause 2.8.3 of a written contract dated 12 February 2006 between the registered owner and Cousins Securities Pty Ltd ACN 080 152 914 (and others) as joint venture partners.” (It was common ground that the contract date specified was wrong as to year: it should have been 12 February 2004.) [19] The respondents, with the exception of Edmonton, filed a claim and statement of claim on 1 August 2006. By an oversight, the documents filed did not reflect the final version settled by counsel, which included a claim for a declaration that the respondents held an equitable estate. The claim as filed included claims by Mr and Mrs Cousins against Edmonton for breach of contract and against the appellant, CEC Group, for inducing breach of contract and interfering with contractual relations; and by Mr Cousins against CEC Group for breach of fiduciary duty; but it did not claim any interest in the land. Neither did the statement of claim. However, it pleaded, as the basis for the Cousins’ claims, that cl 2.8.3 was a promise within the meaning of s 55 of the Property Law Act 1974 (Qld) accepted by the Cousins, pursuant to which they acquired an equitable interest in the land to the extent of the land described in cl 2.8.3; that Edmonton had breached the clause; and that it had done so on behalf of the CEC Group. [20] An amended statement of claim was filed on 14 August 2006. The amendment added a prayer for relief in the form of a declaration that Mr and Mrs Cousins held “an equitable estate in fee simple in Lot 9”, which, as in the caveat, was described as “to the extent of Lot 1” as proposed on the layout plan. The claim was not at that time amended to correspond with the prayer for relief in the statement of claim, but later, on 5 September 2006, an application was made for amendment. On 20 October 2006, the learned applications judge, in the judgment appealed against here, gave the respondents leave under r 377 of the Uniform Civil Procedure Rules 1999 (Qld) to amend their claim to add the claim for a declaration. He also acceded in part to the appellants’ application to strike out a number of the paragraphs in the statement of claim, but gave the respondents leave to re-plead. [21] At the same time, the learned judge dismissed the appellants’ application under s 127(1) of the Land Title Act 1994 (Qld) for removal of the caveat, concluding that the Cousins had sufficiently shown an interest properly protected by caveat, and that the terms of the caveat lodged were not too wide. He rejected the argument that the proceedings thus far taken could not prevent lapsing of the caveat under s 126(5), expressing the view that “some latitude ought to be shown to caveators about their proceedings.” The circumstances of the case, he said, did not lead him to consider that the respondents ought to lose the protection of the caveat. Did the respondents start proceedings to establish their interest within time? [22] The appellant’s first argument on appeal was that the caveat had lapsed through the combined effect of sub-ss 126(4) and (5) of the Land Title Act, so that the learned -- 7 of 16 -- 8 judge at first instance had no discretion as to its removal. The relevant parts of those sub-sections are as follows: “s 126 Lapsing of caveat … (4) If a caveator does not want a caveat to which this section applies to lapse, the caveator must – (a) start a proceeding in a court of competent jurisdiction to establish the interest claimed under the caveat – … (ii) if a notice under subsection (2) is not served on the caveator - within 3 months after the lodgment of the caveat; and (b) notify the registrar within the 14 days or the 3 months that a proceeding has been started and identify the proceeding. (5) If the caveator does not comply with subsection (4), the caveat lapses.” [23] The appellant argued that what was entailed in “start[ing] a proceeding” under s 126(4)(a) was to be determined by the requirements of the Uniform Civil Procedure Rules. Rule 9 required that the proceeding be started by claim (absent provision for an application to be used) while r 22 required that the claim be in the approved form, with the nature of the claim or the relief sought briefly stated in it and a statement of claim attached to it, both to be filed and served. It was clear, the appellant contended, that the claim was the document which started the proceeding while the statement of claim was a mere attachment setting out the factual basis for the claim. [24] The distinction between claim and statement of claim was akin to that between writ and statement of claim, the nature of which was explained by Barwick CJ and McTiernan J in Renowden v McMullin:9 “The indorsement on the writ not being a statement of claim is not in the nature of a pleading. In our opinion, it should not be construed as such but read for what it is, namely, a notice of the nature of the plaintiff’s claim, of the cause thereof and of the relief sought in the action. … On the other hand, the indorsement marks out the perimeter or range of the area within which the plaintiff may express his claim in a formal fashion in his statement of claim whether as originally filed or as sought to be amended [citations omitted]. ‘The statement of claim is the specific way of stating the claim he has endorsed on the writ’ per Dowse B. in Moore v. Alwill.10” [25] Accordingly, the appellant said, to constitute the start of a proceeding to establish the interest claimed in the caveat, it was necessary that relief based on that interest be sought in the claim itself, because that was the paramount document. In this case, the claim had not when filed or at any stage in the ensuing three months sought to establish the respondents’ interest. Nor did the statement of claim as filed claim any relevant relief. The subsequent amendment did not assist; an amendment 9 (1970) 123 CLR 584, at 595. 10 (1881) 8 L R Ir (CL) 245; 15 Ir L T 54, at p 55. -- 8 of 16 -- 9 to the proceedings did not amount to starting it. For that proposition, the appellant relied on the decision of Barry J in Staples v Staples.11 It was suggested in that case that federal jurisdiction could be conferred on the Victorian Supreme Court by permitting an amendment by which the necessary facts to ground that jurisdiction were pleaded; the amendment itself would amount to the institution of proceedings. Barry J rejected the submission: “I do not think it can be rightly said that in the ordinary use of language or in the common understanding of legal practice the making of an amendment pursuant to leave amounts to an institution of proceedings.”12 [26] Even were an amendment sufficient to constitute starting proceedings, the amendment to the claim came too late. Rule 387(3) of the Uniform Civil Procedure Rules could not assist by deeming the claim for a declaration as to the equitable interest to have retrospective effect. The rule was merely procedural and could not operate to revive an entitlement extinguished by the operation of another enactment. And the relief claimed in the amended statement of claim exceeded that sought in the claim; to that extent the pleading was liable to be struck out. [27] Accordingly, the respondents had not started the proceeding to establish the interest claimed under the caveat within three months after its lodgement. Consequently, s 126(5) of the Land Title Act operated automatically to cause the caveat to lapse and there was no occasion for any exercise of discretion. [28] It is surprising, given that contention, that the appellant’s application at first instance was not for a declaration that the caveat had lapsed, but instead for an order that it be removed. But the appellant, in my view, is correct in its submission that if the respondents had failed to comply with s 126(4), no discretion fell to be exercised by the learned applications judge; the caveat had simply lapsed at the effluxion of three months. It is necessary, therefore, to consider whether the respondents had started proceedings to establish their interest. [29] Assuming, for the moment, that proceedings for the purposes of s 126(4)(a) may be started by amendment, I can say at the outset that I do not consider that the amendment made to the claim on 20 October 2006 constituted the starting of proceedings within the prescribed three months. Rule 387(3), which deems a proceeding amended by the inclusion of a cause of action to have started when the original proceedings started, is expressed to apply “for a limitation period”. “Limitation period” is defined in Sch 4 of the Uniform Civil Procedure Rules to mean “a limitation period under the Limitation of Actions Act 1974.” It does not seem that it can have any application to the period fixed by s 126(4)(a). Consequently, the amendment to the claim could not, on any view, have constituted a starting of the necessary proceedings within three months. [30] But what is the significance of the assertion of an equitable interest, and its later inclusion in the prayer for relief, in the statement of claim? I do not think that the distinction between writ and statement of claim explained in Renowden v McMullin assists greatly in determining, for the purposes of s 126(4), what constitutes the starting of a proceeding to establish an interest claimed under a caveat. The respective functions of claim and statement of claim are somewhat different under 11 [1952] VLR 25. 12 At pp 26-27. -- 9 of 16 -- 10 the practice established by the Uniform Civil Procedure Rules, principally because the statement of claim is now to be attached to the claim. Consequently they are filed and served at the same time, and since the rules require that the statement of claim state any relief claimed,13 it would seem, equally and simultaneously with the claim, to perform one of the functions attributed in Renowden to the claim; that is to say, putting the defendant on notice of the nature of the claim, the cause of it and the relief sought. Of course, a defendant could seek to strike out the relief claimed in the statement of claim to the extent that it went beyond what was claimed in the claim; but the fact that the statement of claim is capable of attack does not per se preclude it from being effective to start proceedings to establish the necessary interest. [31] In this case, of course, the statement of claim in its original form did not include, in the heads of relief sought, the declaration of the equitable interest claimed by caveat. The respondents argued that nothing in s 126(4) required the interest in question to be identified in the prayer for relief. The proceeding would be to establish the interest claimed in the caveat if its existence were an essential ingredient of the claim. Here the acquisition of the equitable interest was pleaded as arising from the promise contained in cl 2.8.3, Edmonton’s failure to perform which constituted the breach of contract giving rise to the claim for damages. [32] The approach suggested by the respondents finds some support in single judge decisions made under the equivalent section of the Real Property Act 1877 (Qld). Section 39 of that Act provided for lapse of a caveat after three months “unless the [caveator] shall within that time have taken proceedings … to establish his title to the estate or interest therein specified ...”. In Re Hardy’s Caveat,14 the respondent caveator lodged a caveat claiming “an estate or interest as the registered proprietor of an estate in fee simple as tenant in common with another in one half part or share”. He and his brother, with whom he had been tenant in common, had agreed orally to subdivide the relevant property, with the respondent receiving the benefit of certain easements. They had fallen into dispute, and his brother, it was alleged, denied his right to the easements. The respondent brought an action claiming a declaration as to his entitlement to the easements and seeking specific performance of the verbal agreement that they would be granted to him. A supposed purchaser from the brother applied to have the caveat removed, arguing that the action was not one taken to establish title to the estate specified in the caveat, because it did not claim any declaration that he was, or was entitled to become, the registered proprietor of an estate in fee simple as tenant in common. W B Campbell J (as he then was) refused the application. The enforcement of the oral agreement sought by the action depended on the respondent’s claim that he was registered proprietor as tenant in common in the land. It amounted, W B Campbell J held, to an action to establish the respondent’s title to the estate specified in the caveat. Accordingly, it prevented the caveat from lapsing. [33] In Re Burman15 the respondent caveator had claimed “an estate or interest as chargee of an estate in fee simple” on the strength of a clause in a building contract which gave him a charge over a parcel of land to secure progress payments. The applicant failed to pay a progress certificate in the amount of $46,835.36. The 13 Rule 149(1)(d). 14 [1969] QWN 4. 15 Unreported, Lee J, OS No 211 of 1991, 16 April 1991. -- 10 of 16 -- 11 respondent issued a District Court plaint claiming that amount, referring in the pleadings to the building contract without any further particulars. By its defence the applicant admitted the existence and content of the contract. Subsequently the respondent lodged his caveat and after that issued a specially endorsed Supreme Court writ claiming the sum the subject of the District Court plaint. The particulars in the writ extended only to alleging the term giving rise to the obligation to pay the amounts owed under that contract; there was no reference to the clause which gave rise to the charge and there was no relief claimed in the writ in respect of the charge. [34] The applicant argued that the caveat had automatically lapsed after the expiration of three months because the caveator had not, within the three month period, taken proceedings to establish his title to the claimed interest in land. All he had sought was a money judgment for an alleged debt. Lee J accepted the respondent’s submission that the action to establish the debt was an action to establish the charge, because the latter came into existence once the former was established. It would be artificial if the caveat were to be removed merely because there was no specific claim for a declaration in the writ. The respondent was clearly relying on all of its rights and remedies pursuant to the contract, and both parties were aware of the existence of the clause giving rise to the charge. It was odd, however, that the writ did not claim a declaration of entitlement to the charge as consequential relief on a judgment for the debt. But it was, Lee J said, “a matter of simple amendment to allow such a claim to be included therein.” He dismissed the application for removal of the caveat. [35] Both decisions, given by distinguished judges, evince a liberal approach to the question of what constitutes the taking of proceedings to establish title, a concept not relevantly different in my view from starting proceedings to establish an interest. The level of connection between the pleadings and the interest the subject of the caveat is similar in this case to that in Burman. Where in Burman the charge came into existence once the debt sued for was established, in this case the equitable interest depended on the establishing of the promise in cl 2.8.3, for the breach of which the respondents sued. Lee J did not think it fatal (as opposed to ill-advised) that none of the relief sought in Burman included, or even depended on the existence of, the caveated-for interest. I have some doubt, however, that proceedings which incidentally assert the existence of an interest, or of the conditions necessary to its creation, are necessarily proceedings to establish that interest. But it is not necessary to reach a concluded view, because the claim to relief in respect of the equitable interest was made explicit by the amendment to the statement of claim in August 2006. [36] The appellant’s contention that an amendment to proceedings cannot amount to the starting of proceedings for the purposes of s 126(4)(a) involves a narrow construction. It would mean that a caveator who already had associated proceedings on foot could never add a claim in order to support a caveat; he must always start afresh. But the requirement of starting a proceeding to establish the interest must be considered in the context of the legislation in which it appears. Identifying what amounts to starting a proceeding for the purposes of the Uniform Civil Procedure Rules is of limited assistance. The statement in Staples that amendment is not equivalent to institution must be seen against the background of that case: the Matrimonial Causes Act 1945 (Cth) expressly required that proceedings be instituted under s 10(1) of that Act as a precedent to federal jurisdiction being conferred on the Supreme Court; they were in fact brought under the Marriage Act -- 11 of 16 -- 12 1958 (Vic); an amendment of the petition to refer to the Matrimonial Causes Act 1945 could not change that. That is a rather different context. [37] The object of the Land Title Act is “to consolidate and reform the law about the registration of freehold land and interests in freehold land”,16 a particular aspect of that being “to define the rights of persons with an interest in registered freehold land”.17 Section 126(4), conformably with that object, requires the caveator to take steps to make good the interest he claims; to start the process by which his rights and those of the caveatee may be defined. It can make no difference in that process whether the claim is made by filing the necessary document or by amendment of it. In my view, the requirement in s 126(4) that proceedings be started to establish the interest claimed in the caveat is met once the appropriate proceedings are put on foot, whether that be by commencement or amendment. That occurred in this case by amendment of the statement of claim in August 2006. Consequently, s 126(5) of the Land Title Act did not apply, and the learned primary judge retained his discretion under s 127(2) of that Act in dealing with the application for removal of the caveat. Was there a serious question to be tried? [38] The remaining limbs of the appellant’s argument concerned the learned judge’s exercise of that discretion. His Honour found, not surprisingly, that Cousins Securities had acquired no caveatable interest by virtue of cl 2.8.3, but he did not consider that the company’s naming as caveator warranted the caveat’s removal. There is no issue in this respect on appeal. Instead, the appellant argued that the remaining caveators, Mr and Mrs Cousins, had failed to adduce necessary evidence as to their entitlement to the interest claimed. Re Jorss' Caveat18 made it plain that the onus was on the caveator to satisfy the court, as for an injunction, that there was a serious question to be tried and that the balance of convenience favoured the retention of the caveat on the title. Australian Broadcasting Corporation v O’Neill19 had clarified that the former involved showing “a sufficient likelihood of success to justify in the circumstances the preservation of the status quo”.20 There was no evidence, the appellant argued, to establish that the elements necessary to the application of s 55 of the Property Law Act existed. [39] Section 55(1) is in these terms: “Contracts for the benefit of third parties (1) A promisor who, for a valuable consideration moving from the promisee, promises to do or to refrain from doing an act or acts for the benefit of a beneficiary shall, upon acceptance by the beneficiary, be subject to a duty enforceable by the beneficiary to perform that promise.” The appellant referred to the approach taken to the provision in Bidjara Aboriginal Housing and Land Co Ltd v Bidjara Motor Corp Pty Ltd21 in which this Court emphasised the need, in the circumstances of that case, to undertake “careful 16 Section 3. 17 Section 3(a). 18 [1982] Qd R 458. 19 (2006) 227 CLR 57. 20 At p 82. 21 [2005] QCA 196; Appeal No 10628 of 2004, 10 June 2005. -- 12 of 16 -- 13 analysis of a particular factual situation” in order to ascertain how and whether s 55 operated. [40] Here, the appellant said, it was unclear which party was the promisor and which the promisee under cl 2.8.3. There was no evidence that consideration had passed to the promisor, whichever party that was. The learned judge had arrived at the following conclusion: “While identification of promisor, promisee and consideration for s 55 purposes may not be straightforward, parties occupying both roles, I am confident that on analysis (which is unnecessary to pursue to finality here) these s 55 requirements are satisfied” from which it was manifest, the appellant submitted, that his Honour had been unable to identify how the requirements of s 55 were satisfied on the facts. [41] The promise by Edmonton was not the assumption of an unconditional obligation referred to in the caveat; it was conditional on creation of the lot. There was no evidence that the interest the subject of the promise would come into existence, i.e. that the plan of sub-division would be approved and the plan registered. The evidence was that there had been an application for subdivision, albeit some 30 months ago, on which the Council concerned had made no decision, and the court should infer that approval would not now be given. In the absence of evidence that the relevant interest would be created, the caveat must be removed; a proposition for which the judgment of Joske J in Gasiunas v Meinhold22 was cited. And although Mr Cousins had sworn an affidavit going to some issues in the case, including the balance of convenience, he did not depose to whether he and his wife had complied with cl 2.8.3 or whether the requirements of s 55 of the Property Law Act had been met. In particular, there was no evidence of acceptance of the benefit of the promise by the Cousins in terms of the clause, which required communication to the promisor that their acceptance was in satisfaction of all claims for work done. [42] It is clear that one promisor, at least, under clause 2.8.3 was Edmonton, although, as the appellant says, it is not immediately obvious whether each of the other parties to the joint venture agreement should be regarded as promisor or promisee. But I do not think it was crucial, on the application before his Honour, to identify the respective roles of the parties to the joint venture. The point was that there was, as part of the agreement of the parties, a benefit conferred on the Cousins which, subject to other considerations, could give them an equitable interest in the land sufficient to support a caveat. As counsel for the respondents pointed out, consideration for the promise could be found in various clauses of the joint venture agreement by which the parties bound themselves to do various things. [43] As to the question of acceptance of the promise by the Cousins, the learned judge regarded it as arguable that Mr Cousins, by signing the joint venture agreement for Cousins Securities, and by generally causing that company to take part in the agreement, had manifested an intention of accepting the promise. That view was open to him. And while acceptance of the promise might oblige the Cousins to forgo any claims for work done, it did not, in my view, follow that it was necessary for them to couch their acceptance in terms of that forbearance for it to be effective under s 55. 22 [1964] 6 FLR 182. -- 13 of 16 -- 14 [44] The promise that Edmonton would transfer the property was not in its terms conditional, although its fulfilment required further steps to be taken. The circumstances are similar to those in Re Henderson's Caveat.23 In that case, two acres were to be subdivided from a larger block. The caveator, who claimed to have purchased the two acres, lodged a caveat over the entire lot, claiming an estate in fee simple as purchaser, or, alternatively, an equitable interest. An argument was made that, pending approval of subdivision, she had no more than a conditional interest in the area to which she laid claim. On the basis that an equitable interest could exist provided the claimant was entitled to equitable relief by way of injunction or other remedy, the court accepted that her interest was caveatable. The same can be said of the Cousins’ interest here. [45] Joske J in Gasiunas went no further than saying that if there was evidence that a consent needed for the transfer of land was refused, so that the relevant contract was unenforceable, the caveat protecting the purchaser’s interest under the contract should be removed24. That is not the situation here: there was no such bar to the carrying out of the promise. The judge was entitled to accept that there was sufficient evidence of an interest requiring protection pending trial. [46] The respondents, it should be mentioned, argued an alternative claim to an equitable interest based on a constructive trust arising from a breach of fiduciary duty by the appellant. The argument was that the appellant owed the respondents a duty to advance the joint venture agreement, which in turn involved registration of the plan of subdivision. It is a basis of claim not articulated in either the original or the amended statement of claim. His Honour found it unnecessary to deal with it, preferring to base his conclusions on the respondents' entitlement to an interest as beneficiary under clause 2.8.3, and I have similarly found it unnecessary to consider it. [47] No error has been demonstrated in his Honour's conclusion that there was a serious question to be tried as to the Cousins’ entitlement to the interest claimed. Was the caveat too wide? [48] The final ground of challenge to his Honour's refusal to remove the caveat was that the caveat was too wide because it forbade the registration of any instrument affecting the whole of Lot 9, 746.134 hectares, notwithstanding that the interest claimed was only 2,521 square metres. It also had the effect of preventing registration of the plan of subdivision, so that Lot 1 could not be created in any event. [49] The learned judge considered that the decision in Re Henderson's Caveat disposed of that argument. In that case, the caveat was lodged over the entire 42 acre lot in which the caveator claimed to have purchased two acres, eventually to be excised, and it was argued that it was too wide. Macrossan CJ and Demack J held that since the two acre area had not yet been subdivided, nor had its boundaries been established on firm evidence, the court should not hold that the caveat was too wide. “Until precision is established it seems correct to accept at the caveat stage that the respondent has an equitable interest sufficiently applicable to all of [the 42 acre lot].”25 23 [1998] 1 Qd R 632. 24 At p 189. 25 At p 638. -- 14 of 16 -- 15 [50] Davies JA put the proposition more broadly. Equitable relief would be available, by way of injunction or specific performance, to ensure that the registered proprietor dealt with the 42 acre lot only in a way consistent with subdivisional approval being obtained for the excision of the two acre parcel. Any such order would be expressed to extend to any dealing with the whole of the larger block. It followed that “equity recognises the respondent’s interest as extending over the whole of [the 42 acre lot] until subdivisional approval is obtained.”26 Accordingly, the caveator had a caveatable interest in the whole of the larger parcel. [51] The appellant here argued that the area claimed could be identified by reference to the proposed layout plan, but I do not think that Re Henderson's Caveat is distinguishable on its facts from the present case. In that case there was a copy plan showing the proposed excision of the two acres, in much the same way as the plan here identified the portion the subject of the promise. The learned primary judge was, in my view, justified in concluding that Re Henderson’s Caveat provided an answer to the appellant’s contentions. Undertaking as to damages [52] Finally, some complaint was made as to the absence, or alternatively the worthlessness, of an undertaking as to damages. It was said that none had been offered, and that although Mr Cousins swore an affidavit deposing as to his financial circumstances, its content was improbable and incomplete and should not be accepted as credible. [53] The record shows that all five respondents offered an undertaking as to damages and no application was made to cross-examine any of the natural respondents. That undertaking was not recorded by his Honour in his judgment nor made a condition of refusal of removal of the caveat. It may be accepted that the failure to require the undertaking was an error; his Honour's order should be varied by adding as a condition “upon the first, second and third respondents' undertaking as to damages in the usual form” to the order “application for removal of caveat refused”. Otherwise the appeal against the refusal to remove the caveat should be dismissed. The appeal against the refusal to strike out [54] The second of the appeals concerned what was said to be the learned judge’s errors, in not striking out various paragraphs of the amended statement of claim on the grounds that they failed to disclose a reasonable cause of action, had a tendency to prejudice or delay the fair trial of the proceedings or were unnecessary, and in failing to strike out the entire amended statement of claim, given that he gave the respondents leave to re-plead generally. As it happens, the amended pleading for which his Honour gave leave was delivered by the respondents on 16 November 2006. In Just GI Pty Ltd v Pig Improvement Co Australia Pty Ltd27 Williams JA observed of appeals from the exercise of discretion on matters of practice and procedure that - “Generally, in addition to error of principle, the order appealed from must work a substantial injustice to one of the parties before an appellate court would interfere.”28 26 At p 642. 27 [2001] QCA 48; Appeal No 5723 of 2000, 27 February 2001. 28 At para [14]. -- 15 of 16 -- 16 an observation cited and adopted by this court in MGM Containers Pty Ltd v Wockner.29 [55] In this case, it is simply unknown whether the amended statement of claim contains anything of which the appellants would have grounds to complain; but if it does there is a ready venue for them to do so in the Applications Court. In the circumstances, I can see no injustice but, rather, considerable futility in embarking on appellate review of his Honour's orders. I would dismiss the appeal against the refusal to strike out particular paragraphs and the granting of leave to re-plead. [56] In the circumstances the respondents should have their costs of both appeals. [57] MACKENZIE J: I have had the opportunity to read the draft reasons of Holmes JA and agree with them. I agree with the orders proposed by her. [58] With regard to the reservation in paragraph [35], I agree that it is unnecessary to reach a conclusion, to dispose of this case, as to where the outer limits of what may constitute a proceeding started under s 126(4)(a) of the Land Title Act 1994 (Qld) to establish an interest claimed in a caveat lie in a case where it is not claimed in express terms. I would only add that attempting to do so would in all probability be fruitless since each case will depend on its own facts. 29 [2006] QCA 502 at para [29]. -- 16 of 16 --