Cook v Cook & Ors [2006] QSC 180

SUPREME COURT OF QUEENSLAND CITATION: Cook v Cook & Ors [2006] QSC 180 PARTIES: WILLIAM THOMAS COOK (applicant) v CAROLINE TERESE COOK (respondent) and CAROLINE TERESE COOK as administrator of the Estate of James William Michael Cook (Deceased) (second respondent) FILE NO/S: BS 5036 of 2006 DIVISION: Trial Division PROCEEDING: Application ORIGINATING COURT: Supreme Court DELIVERED ON: 28 July 2006 DELIVERED AT: Brisbane HEARING DATE: 15 June 2006 JUDGE: Moynihan J ORDER: The respondent has, in her own right and as executor of the estate, a sufficient interest to sustain the caveat. The application is therefore dismissed. CATCHWORDS: LAND TITLES UNDER THE TORRENS SYSTEM- EQUITY- CONSTRUCTIVE TRUST- application for removal of caveat- whether equitable interest enough to support caveat Birmingham and Ors v Renfrew and Ors (1936) 57 CLR 666 Breskevar v Wall (1971) 126 CLR 376 Commissioner of Stamp Duties (Qld) v Livingstone [1965] AC 1964 In Re Devoy; Fitzgerald and Pender v Fitzgerald [1943] St R Qd 137 Latec Investments Ltd v Hotel Terrigal Pty Ltd (In Liquidation) (1965) 113 CLR 265 Rapley v Ferrari unreported, New South Wales Court of Appeal, Mahoney, Clarke and Handley JJA, 10 August 1990, 33 of 1987 Schaefer v Schuhmann and Ors [1972] AC 572 COUNSEL: S A Lynch for the applicant -- 1 of 4 -- 2 P Hackett for the respondent SOLICITORS: Bernays & Bernays for the applicant Clewett Corer & Drummond for the respondent [1] MOYNIHAN J: The applicant seeks removal of a caveat lodged over his land on the basis that the respondent does not have a caveatable interest. [2] The nature of the interest claimed by the respondent appears in a defence and counter claim to an action instituted by the applicant in the Magistrates Court in Dalby against the respondent as administrator of the estate of James William Michael Cook, as trustee of the JWM & CT Cook Family Trust and the respondent personally. [3] In that action the applicant claimed money owing under an agistment agreement. The defence alleges an agreement between the applicant, and the respondent and her husband, who is now deceased. The applicant is the executor of his estate. [4] It is alleged that the agreement was that the respondent and her husband would continue to provide services and resources for the management of specified land in consideration of the applicant agreeing to execute a will in their favour, leaving them his residuary estate, that land, and a herd of cattle, and not to revoke that will. [5] The defence and counter claim sought specific performance of the agreement and a declaration that the applicant holds the land on trust for the respondent and her husband’s estate as beneficiaries under a constructive trust in terms of the agreement. The respondent alleges that she and her deceased husband carried out their part of the agreement. [6] It is accepted that there is a serious question to be tried as to the making of the agreement and its terms. The issue to be determined on this application is whether the respondent has a caveatable interest. [7] Reference was made to In Re Devoy; Fitzgerald and Pender v Fitgerald [1943] Sc R Qd 137 (Full Court) as supporting she does not. That case was however concerned with the nature of and “interest in the estate” in terms of the Probate Act of 1867 and the Succession Act of 1867 and the relevant Rules of Court. [8] It was held in Devoy that a nephew of the testatrix had, on that account, no interest under her will and that a niece bequeathed an equal share of the testatrix’s jewellery with nine other nieces was not entitled to intervene (caveat) in a solemn form action or to oppose the grant. [9] Those considerations have no application here. The issue is to an interest in land capable of sustaining a caveat on the title to the land. -- 2 of 4 -- 3 [10] In Birmingham and Ors v Renfrew and Ors (1936) 57 CLR 666 there was an oral agreement between husband and wife that the wife would leave her property by will to her husband in consideration for his making a will leaving his property to four named relatives of the wife in the event of her predeceasing him and that he would not revoke the will. The husband took under her will, revoked his prior will and made a will benefiting persons other than the wife’s relatives. [11] The High Court held that the agreement created a constructive trust enforceable in equity by the relatives against the executors of the husband’s estate. It was further held that the agreement was not a contract for the sale of land because it did not relate to specific property and so it could not be said the agreement concerned an interest in land so as to require it being manifest by writing. [12] The considerations which arise here take the matter into the considerations raised by the Commissioner of Stamp Duties (Qld) v Livingstone [1965] AC 1964 (Privy Council) and Latec Investments Ltd v Hotel Terrigal Pty Ltd (In Liquidation) (1965) 113 CLR 265. [13] The Privy Council held in Livingstone that a beneficiary’s interest in an unadministered estate was, during the course of administration vested in the personal representative. The beneficiary had no proprietary interest in any particular asset of the estate but a right to compel the personal representative, through a court of equity, to administer the estate. It was said not to be clear to what extent the beneficiary could, during the course of administration, assert any proprietary interest against a third party. [14] The issue is the difference between what is conveniently but over simplistically referred to as that between a mere equity or an equitable interest in the land. See for example Breskevar v Wall (1971) 126 CLR 376 at 387 per Barwick CJ and generally Meagher, Gummow and Lehane (4th Edition) Equity Doctrines and Remedies (Butterworths Lexis Nexis) Chapter 4. [15] In Schaefer v Schuhmann and Ors [1972] A.C. 572 the Privy Council held that a contract to devise or bequeath specific property was “stronger than if the contract was simply to leave a legacy”. If the testator sold the property during his lifetime the promisee could treat the sale as a repudiation and recover damages. If the promisee could intervene before a purchaser for value without notice obtained an interest in the property the promisee could obtain a declaration of his right to have the property left to him by will and an injunction restraining the testator from disposing of it. Since a will was revocable the testator was however at liberty to dispose of his property during his lifetime but on his death the promisee could claim payment from the estate. [16] It was therefore held that in an application under the Testator’s Family Maintenance and Guardianship of Infants Act 1916 (NSW) legislation the court had no jurisdiction to throw the burden of any orders made under the legislation on the property the subject of the agreement. -- 3 of 4 -- 4 [17] Rapley v Ferrari unreported, New South Wales Court of Appeal, Mahoney, Clarke and Handley JJA, 10 August 1990, 33 of 1987, was a case in which a deceased residuary estate was held to be bound by a legally enforceable contract with the respondent to provide by a will which he would not revoke an option in the purchase of land. The consequence was that the promisees were entitled in equity to the residue of the deceased’s estate under a constructive trust. Consequently the deceased left no estate to satisfy orders under the Testator’s Family Maintenance and Guardianship of Infants Act 1916 (NSW) legislation. [18] In the light of those cases and assuming the contract is proven, it is fairly arguable the respondent has, in her own right and as executor of the estate, a sufficient interest to sustain the caveat. The application is therefore dismissed. -- 4 of 4 --